INDENTURE

Exhibit 4.1

Saks Incorporated,

as Issuer,

The Subsidiary Guarantors named herein,

as Guarantors

and

The Bank of New York Mellon,

as Trustee

INDENTURE

Dated as of May 27, 2009

7.5% Convertible Notes due 2013

 

1

TABLE OF CONTENTS

 

 

 

2

 

3

 

4

 

 

5

INDENTURE dated as of May 27, 2009 between SAKS INCORPORATED, a Tennessee corporation (“ Company ”), the GUARANTORS named on the signature pages hereto, and THE BANK OF NEW YORK MELLON, a New York banking corporation (“ Trustee ”).

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s 7.5% Convertible Notes due 2013:

ARTICLE 1

D EFINITIONS A ND I NCORPORATION B Y R EFERENCE

Section 1.01 . Definitions.

“ Act ” shall have the meaning set forth in Section 1.04.

“ Additional Interest ” means all amounts, if any, payable pursuant to Section 3.02(b) and (c).

“ Additional Shares ” shall have the meaning set forth in Section 9.23.

“ Affiliate ” shall have the meaning set forth in Rule 144 under the Securities Act.

“ Agent Members ” shall have the meaning set forth in Section 2.12(e).

“ Applicable Conversion Reference Period ” means, with respect to any Conversion Date occurring during the period beginning on and including the 30th Scheduled Trading Day prior to the scheduled Maturity Date and ending at the close of business on the Business Day immediately prior to the scheduled Maturity Date, the 25 consecutive Trading Day period beginning on, and including, the 27th Scheduled Trading Day prior to the scheduled Maturity Date, and, in all other cases, the 25 consecutive Trading Day period beginning on, and including, the third Trading Day immediately following the related Conversion Date.

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Security or any beneficial interest therein, the rules and procedures of the Depositary for such Security, in each case to the extent applicable to such transfer or transaction and as in effect from time to time.

“ Authenticating Agent ” shall have the meaning set forth in Section 2.02.

“ Bankruptcy Law ” shall have the meaning set forth in Section 5.01.

“ Board of Directors ” means either the board of directors of the Company or any duly authorized committee of such board.

“ Board Resolution ” means a copy of one or more resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors,

 

6

or such committee of the Board of Directors or officers of the Company to which authority to act on behalf of the Board of Directors has been delegated, and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“ Business Day ” means any weekday that is not a day on which banking institutions in The City of New York are authorized or obligated to close.

“ Capital Lease Obligations ” means any obligation under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP; and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligations determined in accordance with GAAP; and the stated maturity date thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty.

“ Capital Stock ” for any entity means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that corporation.

“ cash ” shall have the meaning set forth in Section 2.07.

“ Certificated Securities ” means Securities that are in registered definitive form.

“ Change of Control ” means:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act but excluding the Saks Incorporated 401(k) Retirement Plan) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act with the qualification that such person or group will be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time or the occurrence of an event or condition), directly or indirectly, of more than 50% of the total voting power of the Company’s then-outstanding Voting Stock; or

(b) the Company (i) consolidates with or merges into any other Person or sells, transfers or leases all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any other Person in any one transaction or series of related transactions or (ii) permits any Person to consolidate with or merge into it, unless the Company is the surviving Person.

However, a “Change of Control” shall not be deemed to have occurred if at least 90% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a transaction otherwise constituting a “Change of Control” under the definition in the immediately preceding sentence consists of shares of common stock or American Depositary Receipts traded on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successor national securities exchanges), or will be so traded immediately following the merger or consolidation, and as a result of the merger or consolidation the Securities become convertible into such consideration. For the avoidance of doubt, under no circumstances will there be a Change of Control unless the Change of Control also results in the occurrence of a Make Whole Adjustment Event.

 

7

“ close of business ” means 5:00 p.m. (New York City time).

“ Closing Sale Price ” of the Common Stock on any date means the closing per-share sale price (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 on the NYSE or, if the Common Stock is not listed on the NYSE, then as reported by the NASDAQ Global Select Market, the NASDAQ Global Market or the principal other national or regional securities exchange on which the shares of Common Stock are then traded or, if the Common Stock is not listed or approved for trading on the NASDAQ Global Select Market, the NASDAQ Global Market or another national or regional securities exchange, on the principal market on which the shares of Common Stock are then traded. If the Common Stock is not so traded, the “ Closing Sale Price ” will be the average of the midpoint of the last bid and ask prices for the shares of 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.

“ Common Stock ” shall mean the shares of common stock, $0.10 par value per share, of the Company existing on the date of this Indenture or any other shares of Capital Stock of the Company into which the Common Stock shall be reclassified or changed.

“ Company ” means the party named as such in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions hereof and, thereafter, means the successor.

“ Company’s Filing Obligations ” shall have the meaning set forth in Section 5.01.

“ Company Order ” means a written request or order signed in the name of the Company by any two Officers.

“ Conversion Agent ” shall have the meaning set forth in Section 2.03.

“ Conversion Date ” shall have the meaning set forth in Section 9.02.

“ Conversion Obligation ” shall have the meaning set forth in Section 9.01(a).

“ Conversion Price ” means, in respect of each Security, as of any date, $1,000 divided by the Conversion Rate as of such date.

“ Conversion Rate ” means, initially, 180.5869 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment as herein set forth.

“ Corporate Trust Office ” means the corporate trust office of the Trustee at which at any time the trust created by this Indenture shall be administered, which office at the date hereof is located at 101 Barclay Street, Fl. 8W, New York, New York 10286, Attention: Corporate Trust Administration or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the corporate trust office of any successor Trustee at which such trust shall be administered (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company).

 

8

“ Credit Facility ” means the Company’s Amended and Restated Credit Agreement dated November 26, 2003 (as in effect on the date hereof and as such agreement may be amended, restated, supplemented, renewed, replaced by the existing lenders or by successors or otherwise refinanced or modified from time to time).

“ Custodian ” shall have the meaning set forth in Section 5.01.

“ Daily Conversion Value ” means, for each day in the Applicable Conversion Reference Period, one-twenty-fifth (1/25th) of the product of (a) the applicable Conversion Rate and (b) the Daily VWAP of the Common Stock on such Trading Day.

“ Daily Measurement Value ” shall have the meaning set forth in clause (a) of the definition of Daily Settlement Amount.

“ Daily Settlement Amount ,” for each of the 25 consecutive Trading Days during the Applicable Conversion Reference Period, shall consist of:

 

(a)

cash equal to the lesser of (i) the dollar amount per Security to be received upon conversion as specified in the notice regarding the Company’s chosen settlement method (“ Specified Dollar Amount ”), if any, divided by 25 (such quotient, “ Daily Measurement Value ”) and (ii) the Daily Conversion Value; and

 

(b)

to the extent the Daily Conversion Value exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading Day.

“ Daily VWAP ” of the Common Stock, in respect of any Trading Day, means the per-share volume-weighted average price on the NYSE as displayed under the heading “Bloomberg VWAP” on Bloomberg page “SKS.N <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock (or one unit of any Reference Property consisting of marketable equity securities) on such Trading Day as determined by the Board of Directors in a commercially reasonable manner, using a volume-weighted average price method (or, in the case of Reference Property consisting of cash, the amount thereof)) and will be determined without regard to after-hours trading or any other trading outside of the regular trading session.

“ Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“ Defaulted Interest ” shall have the meaning set forth in Section 10.02.

“ Depositary ” shall have the meaning set forth in Section 2.01(a).

 

9

“ DTC ” shall have the meaning set forth in Section 2.01(a).

“ Effective Date ,” for purposes of Section 9.23, including the determination of the number of Additional Shares pursuant to the table set forth therein, means

(a) in the case of a Make Whole Adjustment Event under clause (a) of the definition thereof, the date on which such person or group is or becomes the beneficial owner, directly or indirectly, of more than 50% of the total voting power of the Company’s then-outstanding Voting Stock;

(b) in the case of a Make Whole Adjustment Event under clause (b) of the definition thereof, the date on which such corporate event becomes effective;

(c) in the case of a Make Whole Adjustment Event under clause (c) of the definition thereof, the date on which the Company’s stockholders approve the relevant plan or proposal; and

(d) in the case of a Make Whole Adjustment Event under clause (d) of the definition thereof, the date on which the Common Stock (or other Common Stock into which the Securities are then convertible) ceases to be so listed or approved.

“ Event of Default ” shall have the meaning set forth in Section 5.01.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Ex-Dividend Date ” means, with respect to any issuance, dividend or distribution, the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question.

“ Expiration Date ” shall have the meaning set forth in Section 9.10.

“ Expiration Time ” shall have the meaning set forth in Section 9.10.

“ Extension Fee ” shall have the meaning set forth in Section 5.01.

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect and, to the extent optional, adopted by the Company, from time to time, consistently applied.

“ Global Securities Legend ” shall have the meaning set forth in Exhibit A.

“ Global Security ” means a permanent Global Security that is in the form of the Security attached hereto as Exhibit A, and that is deposited with and registered in the name of the Depositary.

“ Guarantee ” means the guarantee of the Securities and the Company’s obligations under this Indenture by each of the Guarantors pursuant to this Indenture.

 

10

“ guarantee ” means, as applied to any obligation, a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner, of any part or all of such obligation. A guarantee shall include, without limitation, any agreement to maintain or preserve any other Person’s financial condition or to cause any other Person to achieve certain levels of operating results.

“ Guarantor ” means (a) each of the Company’s Subsidiaries that are guarantors in respect of the Credit Facility on the date hereof and (b) each other Wholly Owned Subsidiary of the Company that is required to execute a supplemental indenture and become a Guarantor subsequent to the date hereof pursuant to Section 3.08.

“ Holder ” or “ Holders ” means a Person or Persons in whose name a Security is registered in the Register.

“ Indebtedness ” means (a) all obligations for borrowed money, (b) all obligations evidenced by debentures, notes or other similar instruments, (c) all obligations in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations with respect thereto), (d) all obligations to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (e) Capital Lease Obligations and (f) all Indebtedness of others guaranteed by the Company or for which the Company or any of its property is legally responsible or liable (whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others).

“ Indenture ” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof, including the provisions of the TIA that are deemed to be a part hereof.

“ Initial Purchasers ” means Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated.

“ Interest Payment Date ” shall have the meaning set forth in Section 10.01(a).

“ Issue Date ” of any Security means the date on which the Security was originally issued or deemed issued as set forth on the face of the Security.

“ Last Original Issuance Date ” means the original Issue Date or, if later, the date any Securities are issued upon exercise of the Initial Purchasers’ over-allotment option.

“ Legal Holiday ” shall have the meaning set forth in Section 11.08.

“ Make Whole Adjustment Event ” shall be deemed to have occurred if any of the following occurs:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act but excluding Saks Incorporated 401(k) Retirement Plan) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act with the qualification that such person or group will be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable

 

11

immediately or only after the passage of time or the occurrence of an event of condition), directly or indirectly, of more than 50% of the total voting power of the Company’s then-outstanding Voting Stock;

(b) the Company (i) recapitalizes, reclassifies or changes the Common Stock (other than changes resulting from a subdivision or combination) and as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities or other property or assets or (ii) (A) consolidates with or merges into any other Person or sells, transfers or leases all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any other Person in any one transaction or series of related transactions or (B) permits any Person to consolidate with or merge into it, in each case other than any transaction: (1) in which the Company is the surviving Person or (2) that is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving entity;

(c) the Company’s stockholders approve any plan or proposal for the Company’s liquidation or dissolution; or

(d) a Termination of Trading.

Notwithstanding the foregoing, a “Make Whole Adjustment Event” shall not be deemed to have occurred if at least 90% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in a transaction otherwise constituting a Make Whole Adjustment Event under clause (a) and/or clause (b) above consists of shares of common stock or American Depositary Receipts traded on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successor national securities exchanges), or will be so traded immediately following the merger or consolidation, and as a result of the merger or consolidation the Securities become convertible into such consideration.

“ Make Whole Reference Date ” shall have the meaning set forth in Section 9.23.

“ Market Disruption Event ” means (a) a failure by the principal market on which the Common Stock is listed or approved for trading to open for trading during its regular trading session or (b) the occurrence or existence for more than one-half hour period in the aggregate on any Scheduled Trading Day of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the principal market on which the Common Stock is listed or approved for trading or otherwise) in the shares of Common Stock or in any options, contracts or future contracts relating to the shares of Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such day.

“ Material Subsidiary ” means any Subsidiary that would be a “significant subsidiary” of the Company within the meaning of Rule 1-02 of Regulation S-X promulgated by the SEC.

“ Maturity Date ,” when used with respect to any Security, means December 1, 2013.

 

12

“ Merger Event ” shall have the meaning set forth in Section 9.17(a).

“ Notice of Default ” shall have the meaning set forth in Section 5.01.

“ NYSE ” means The New York Stock Exchange.

“ Offering Circular ” means the final offering circular dated May 20, 2009 relating to the offer and sale of the Securities.

“ Officer ” means the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or the Secretary or any Assistant Treasurer or Assistant Secretary of the Company.

“ Officers’ Certificate ” means a written certificate containing the information specified in Sections 11.04 and 11.05, signed in the name of the Company by any two Officers, and delivered to the Trustee. An Officers’ Certificate given pursuant to Section 3.03 shall be signed by the principal financial or accounting Officer of the Company but need not contain the information specified in Sections 11.04 and 11.05.

“ open of business ” means 9:00 a.m., New York City time.

“ Opinion of Counsel ” means a written opinion, reasonably acceptable to the Trustee, containing the information specified in Sections 11.04 and 11.05, from legal counsel. The counsel may be an employee of, or counsel to, the Company.

“ Paying Agent ” shall have the meaning set forth in Section 2.03.

“ Person ” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof.

“ QIBs ” shall have the meaning set forth in Section 2.01(a).

“ Record Date ” shall have the meaning set forth in Section 10.01(a).

“ Reference Property ” shall have the meaning set forth in Section 9.17(a).

“ Register ” shall have the meaning set forth in Section 2.03.

“ Registrar ” shall have the meaning set forth in Section 2.03.

“ Resale Restriction Delegending Date ” means the date that is one year after the Last Original Issuance Date.

“ Restricted Security ” shall have the meaning set forth in Section 2.06(f).

“ Restricted Securities Legend ” shall have the meaning set forth in Exhibit A.

 

13

“ Restricted Stock Legend ” shall have the meaning set forth in Exhibit C.

“ Rule 144A ” means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.

“ Rule 144A Information ” shall have the meaning set forth in Section 3.06.

“ Scheduled Trading Day ” means any day that is scheduled by the applicable exchange to be a Trading Day.

“ SEC ” means the Securities and Exchange Commission.

“ Securities ” means any of the Company’s 7.5% Convertible Notes due 2013, as amended or supplemented from time to time, issued under this Indenture.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Specified Dollar Amount ” shall have the meaning set forth in clause (a) of the definition of Daily Settlement Amount.

“ Spin-off ” shall have the meaning set forth in Section 9.08.

“ Stock Price ” shall have the meaning set forth in Section 9.23.

“ Stockholder Rights Plan ” shall have the meaning set forth in Section 9.13(f).

“ Subsidiary ” means a Person more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries of the Company, or by the Company and one or more other Subsidiaries of the Company.

“ Termination of Trading ” means the Common Stock (or other common stock into which the Securities are then convertible) ceases to be listed or approved for trading on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successor national securities exchanges).

“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture, provided , however , that in the event the TIA is amended after such date, “ TIA ” means, to the extent required by any such amendment, the TIA as so amended.

“ Trading Day ” means a day on which (a) there is no Market Disruption Event and (b) trading in the Company’s securities generally occurs on the NYSE, or if the Common Stock is not listed on the NYSE, then as reported by the NASDAQ Global Select Market, the NASDAQ Global Market or the principal other national or regional securities exchange on which the shares of Common Stock are then traded or, if the Common Stock is not listed or approved for trading on the NASDAQ Global Select Market, the NASDAQ Global Market or another national or regional securities exchange, on the principal market on which the shares of Common Stock are then traded. If the Common Stock is not so listed or traded, “Trading Day” shall have the same meaning as Business Day.

 

14

“ transfer ” shall have the meaning set forth in Section 2.06(f).

“ Trust Officer ” means any officer within the Corporate Trust Administration department of the Trustee (or any successor group of the Trustee) with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter hereunder, any other officer of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

“ Trustee ” means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor. The foregoing sentence shall likewise apply to any subsequent such successor or successors.

“ Uniform Commercial Code ” means the New York Uniform Commercial Code as in effect from time to time.

“ Valuation Period ” shall have the meaning set forth in Section 9.08.

“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at that time entitled to vote in the election of the board of directors, managers or trustees, as applicable, of such Person.

“ Weighted Average Consideration ” shall have the meaning set forth in Section 9.17(c)(iii).

“ Wholly Owned Subsidiary ” means, at any time, a Subsidiary all the Voting Stock of which (except directors’ qualifying shares which shall be deemed to include investments by foreign nationals mandated by applicable law) is at such time owned, directly or indirectly, by the Company and its other Wholly Owned Subsidiaries.

Section 1.02 . Incorporation by Reference Of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

“Commission” means the SEC.

“indenture securities” means the Securities.

“indenture security holder” means a Holder.

“indenture to be qualified” means this Indenture.

“indenture trustee” or “institutional trustee” means the Trustee.

“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.

 

15

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

Section 1.03 . Rules Of Construction.

(a) a term has the meaning assigned to it;

(b) an accounting term not otherwise defined has the meaning assigned to it under, and shall be construed in accordance with, GAAP;

(c) “or” is not exclusive;

(d) “including” means including, without limitation;

(e) words in the singular include the plural, and words in the plural include the singular;

(f) all references to $, dollars, cash payments or money refer to United States currency; and

(g) all references to payments of interest on the Securities shall include Additional Interest, if any, payable in accordance with the terms of Sections 3.02(b) and (c).

Section 1.04 . Acts Of Holders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments (which may take the form of an electronic writing or messaging or otherwise be in accordance with customary procedures of the Depositary or the Trustee) of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing (which may be in electronic form); and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent (either of which may be in electronic form) shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

(a) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution (or electronic delivery) or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing or delivering such instrument or writing acknowledged to such officer the execution (or electronic delivery) thereof. Where such execution is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing (electronic or otherwise), or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.

 

16

(b) The ownership of Securities shall be proved by the Register.

(c) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or the Conversion Agent in reliance thereon, whether or not notation of such action is made upon such Security.

(d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

ARTICLE 2

T HE S ECURITIES

Section 2.01 . Form And Dating. The Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A, which is a part of this Indenture. The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage; provided that any such notation, legend or endorsement required by usage is in a form acceptable to the Company. The Company shall provide any such notations, legends or endorsements to the Trustee in writing. Each Security shall be dated the date of its authentication. Except as otherwise expressly permitted in this Indenture, all Securities shall be identical in all respects. Notwithstanding any differences among them, all Securities issued under this Indenture shall vote and consent together on all matters governed by this Indenture as one class.

(a) Global Securities . Securities offered and sold to qualified institutional buyers as defined in Rule 144A (“ QIBs ”) in reliance on Rule 144A shall be issued initially in the form of a Global Security, which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for the Depositary (as defined below) and registered in the name of The Depository Trust Company (“ DTC ”) or the nominee thereof (DTC, or any successor thereto, and any such nominee being hereinafter referred to as the “ Depositary ”), duly executed by the Company and authenticated by the Trustee as hereinafter provided. 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 and the Depositary as hereinafter provided.

 

17

(b) Global Securities in General . Each Global Security shall represent such of the outstanding Securities as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Securities from time to time endorsed thereon and that the aggregate principal amount of outstanding Securities represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, repurchases and conversions.

Any adjustment of the aggregate principal amount of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.12 and shall be made on the records of the Trustee and the Depositary. Payment of principal, accrued and unpaid interest, and Additional Interest, if any, on the Global Security shall be made to the Holder thereof on the date of payment, unless a Record Date or other means of determining Holders eligible to receive payment is provided for herein.

(c) Book-Entry Provisions . This Section 2.01(c) shall apply only to Global Securities deposited with or on behalf of the Depositary.

The Company shall execute and the Trustee shall, in accordance with this Section 2.01(c), authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary, (ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions and (iii) shall bear the legends substantially to the effect of those required by Section 2.01(d).

(d) Legends .

(i) Each Global Security shall bear the Global Securities Legend set forth in Exhibit A.

(ii) Each Restricted Security shall bear the Restricted Securities Legend set forth in Exhibit A. Each Security that bears or is required to bear the Restricted Securities Legend shall be subject to the restrictions on transfer set forth therein, and each Holder thereof, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.

(iii) Every stock certificate representing Common Stock issued in the circumstances described in Section 2.06(g) shall bear the Restricted Stock Legend set forth in Exhibit C unless removed in accordance with the provisions of Section 2.06(g) or Section 2.06(j).

Section 2.02 . Execution And Authentication. The Securities shall be executed on behalf of the Company by any Officer. The signature of the Officer on the Securities may be manual or facsimile.

 

18

If an Officer whose signature is on a Security no longer holds that office at the time the Trustee authenticates the Security, the Security shall be valid nevertheless.

At any time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a written order of the Company in the form of an Officers’ Certificate for the authentication and delivery of such Securities, and the Trustee in accordance with such written order of the Company shall authenticate and deliver such Securities.

A Security shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Security. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.

The Securities shall originally be issued only in registered form without coupons and only in denominations of $1,000 of principal amount and any integral multiple thereof.

The Trustee shall authenticate and deliver the Securities for original issue in an aggregate principal amount of $120,000,000, upon receipt of one or more Company Orders and such other documents as may be required under this Indenture. The aggregate principal amount of the Securities due at the Maturity Date thereof outstanding at any time may not exceed the applicable amount set forth in the foregoing sentence.

The Trustee may appoint authenticating agents. The Trustee may at any time after the execution of the Indenture appoint an authenticating agent acceptable to the Company to authenticate Securities (“ Authenticating Agent ”). The Authenticating Agent may authenticate Securities whenever the Trustee may do so, except any Securities issued pursuant to Section 2.07. Each reference in this Indenture to authentication by the Trustee includes authentication by such Authenticating Agent. The Authenticating Agent shall have the same right to deal with the Company as the Trustee with respect to such matters for which it has been appointed.

Section 2.03 . Registrar, Paying Agent And Conversion Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (“ Registrar ”), an office or agency where Securities may be presented for payment (“ Paying Agent ”), an office or agency where Securities may be presented for conversion (“ Conversion Agent ”) and an office or agency where notices to or upon the Company in respect of the Securities and this Indenture may be served. The Registrar shall keep a register for the recordation of, and shall record, the names and addresses of the Holders, the Securities held by each Holder and the transfer, exchange and conversion of Securities (“ Register ”). The entries in the Register shall be conclusive, and the parties may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Indenture. The Company may have one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term Paying Agent includes any additional paying agent, including any named pursuant to Section 3.05. The term Conversion Agent includes any additional conversion agent, including any named pursuant to Section 3.05.

The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this Indenture, which shall

 

19

incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 6.07. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar, Conversion Agent or co-registrar.

The Company initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent in connection with the Securities, and each of the Corporate Trust Office of the Trustee and the office or agency of the Trustee in New York, New York to be such office or agency of the Company for the aforesaid purposes.

Section 2.04 . Paying Agent To Hold Money And Securities In Trust. Except as otherwise provided herein, on or prior to each due date of payment in respect of any Security, the Company shall deposit with the Paying Agent a sum of money (in immediately available funds if deposited on the due date) or Common Stock or, as permitted by this Indenture, a combination thereof, sufficient to make such payments when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money and Common Stock held by the Paying Agent for the making of payments in respect of the Securities and shall notify the Trustee of any default by the Company in making any such payment. At any time during the continuance of any such default, the Paying Agent (if not the Trustee) shall, upon the written request of the Trustee, forthwith pay to the Trustee all money and Common Stock so held in trust. If the Company or a Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money and Common Stock held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money and Common Stock held by it to the Trustee and to account for any funds and Common Stock disbursed by the Paying Agent. Upon complying with this Section 2.04, the Paying Agent shall have no further liability for the money delivered to the Trustee.

Section 2.05 . Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in writing at least five Business Days before each semiannual interest payment date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.

Section 2.06 . Transfer and Exchange.

(a) Subject to Section 2.11, upon surrender for registration of transfer of any Security, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Holder or such Holder’s attorney duly authorized in writing, at the office or agency of the Company designated as Registrar or co-registrar pursuant to Section 2.03, (i) the Company shall execute, and the Trustee (or any Authenticating Agent) upon receipt of a Company Order shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination or denominations, of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture and (ii) the

 

20

Registrar shall record the information required pursuant to Section 2.03 regarding the designated transferee or transferees in the Register. The Company shall not charge a service charge for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the registration of, transfer or exchange of the Securities from the Holder requesting such transfer or exchange.

At the option of the Holder, Securities may be exchanged for other Securities of any authorized denomination or denominations, of a like aggregate principal amount, upon surrender of the Securities to be exchanged, together with a written instrument of transfer satisfactory to the Registrar duly executed by the Holder or such Holder’s attorney-in-fact duly authorized in writing, at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.

(b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global Security shall be limited to transfers of such Global Security, to the Depositary, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.

(c) Successive registrations and registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the Register.

(d) Any Registrar appointed pursuant to Section 2.03 shall provide to the Trustee such information as the Trustee may reasonably require in connection with the delivery by such Registrar of Securities upon transfer or exchange of Securities.

(e) No Registrar shall be required to make registrations of transfer or exchange of Securities during any periods designated in the text of the Securities or in the Indenture as periods during which such registration of transfers and exchanges need not be made.

(f) (i) Every Security that bears or is required under this Section 2.06(f) to bear the Restricted Securities Legend required by Section 2.01(d) (“ Restricted Security ”) shall be subject to the restrictions on transfer set forth in this Section 2.06(f) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.06(f), Section 2.06(g) and Sections 2.12(b) and (c), the term “ .transfer ” encompasses any sale, pledge, transfer, loan, hypothecation or other disposition whatsoever of any Restricted Security. Except as otherwise provided in this Indenture with respect to any Restricted Securities (including, without limitation, Section 2.06(i) below) or as permitted under the terms of such Restricted Securities Legend, if a request is made to remove the legend on any Restricted Security, the Restricted Securities Legend shall not be removed unless there is

 

21

delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel, as may be reasonably required by the Company and the Registrar, that neither the Restricted Securities Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 under the Securities Act or that such Securities are not “restricted” within the meaning of Rule 144 under the Securities Act. In such a case, upon provision of such satisfactory evidence, the Trustee, pursuant to a Company Order, shall authenticate and deliver a Security that does not bear the Restricted Securities Legend. If the Restricted Securities Legend is removed from the face of a Security and the Security is subsequently held by the Company or an Affiliate of the Company, the Company shall use its reasonable best efforts to reinstate the Restricted Securities Legend.

(ii) Except as provided elsewhere in this Indenture, (including, without limitation, Section 2.06(i) below), until the date that is the later of (A) the Resale Restriction Delegending Date and (B) 90 days after the Holder ceases to be an Affiliate of the Company, any certificate evidencing such Security (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Exhibit C, if applicable) shall bear the Restricted Securities Legend (unless such Securities have been transferred: (1) to the Company or one of its Subsidiaries; or (2) pursuant to Rule 144 under the Securities Act).

(iii) No transfer of any Security prior to the Resale Restriction Delegending Date will be registered by the Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.

(g) (i) Except as provided elsewhere in this Indenture, (including, without limitation, Section 2.06(i) below), until the date that is the later of (A) the Resale Restriction Delegending Date and (B) 90 days after the holder of such Common Stock ceases to be an Affiliate of the Company, any stock certificate representing Common Stock issued upon conversion of such Security shall bear the Restricted Stock Legend (unless the Security or such Common Stock has been transferred pursuant to the exemption from registration provided by Rule 144 under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to any transfer agent for the Common Stock).

(ii) Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the Restricted Stock Legend.

The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence

 

22

as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(h) The Company shall not, nor shall it permit any Subsidiary to, resell any Security or any Common Stock issued upon the conversion or exchange of a Security that is owned by the Company or any Subsidiary unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Security or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144). If the Restricted Securities Legend or Restricted Stock Legend, as applicable, is removed from the face of a Security and the Security is subsequently held by the Company or an Affiliate of the Company, such legend shall be reinstated.

(i) So long as and to the extent that the Securities are represented by one or more Global Securities held by or on behalf of the Depositary only, the Company may accomplish any delegending of such Securities represented by such Global Securities at any time on or after the Resale Restriction Delegending Date by:

(ii) providing written notice to the Trustee that the Resale Restriction Delegending Date has occurred and instructing the Trustee to remove the Restricted Securities Legend from the Securities;

(iii) providing written notice to the Holders that the Restricted Securities Legend has been removed or deemed removed;

(iv) providing written notice to the Trustee and the Depositary to change the CUSIP number for the Securities to the applicable unrestricted CUSIP number; and

(v) complying with any Applicable Procedures for delegending;

whereupon the Restricted Securities Legend shall be deemed removed from any Global Securities without further action on the part of Holders.

(j) On and after the Resale Restriction Delegending Date, the Company shall also (i) instruct the transfer agent for the Common Stock to remove the Restricted Stock Legend from any Common Stock issued upon conversion of the Securities that bears the Restricted Stock Legend, (ii) notify the holders of any Common Stock issued upon conversion of the Securities (to the extent any Common Stock has been issued upon conversion of the Securities) that such Restricted Stock Legend has been removed, (iii) if relevant, notify the transfer agent for the Common Stock to change the CUSIP number for the Common Stock issued upon conversion of the Securities to the applicable unrestricted CUSIP number, and (iv) comply with any Applicable Procedures for delegending any Common Stock including the Restricted Stock Legend.

Section 2.07 . Replacement Securities. If a mutilated Security is surrendered to the Trustee or the Registrar or if a Holder claims that a Security has been lost, destroyed or stolen and such Holder provide evidence of such loss, destruction or theft satisfactory to the Company and the Trustee, the Company shall issue and the Trustee shall authenticate a replacement Security. If required by the Trustee or the Company, such Holder shall furnish an indemnity

 

23

bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss that any of them may suffer if a Security is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a Security.

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay for such Security in U.S. legal tender (“ cash ”).

Upon the issuance of any new Securities under this Section 2.07, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security issued pursuant to this Section 2.07 in exchange for any mutilated Security, or in lieu of any destroyed, lost or stolen Security, shall constitute an original additional contractual obligation of the Company and any other obligor upon the Securities, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder.

Section 2.08 . Outstanding Securities. Securities outstanding at any time are all Securities authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.08 as not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security; provided , however , that in determining whether the Holders of the requisite principal amount of Securities have given or concurred in any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, Securities owned by the Company or any obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination (including, without limitation, determinations pursuant to Articles 5, 8 and 9).

If a Security is replaced pursuant to Section 2.07, the replaced Security shall cease to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser unaware that such Security has been replaced.

If the Paying Agent holds, in accordance with this Indenture, on the Maturity Date, money sufficient to pay Securities payable on that date, then immediately after such Maturity Date, as the case may be, such Securities shall cease to be outstanding and interest, if any, on such Securities shall cease to accrue and such Securities shall cease to be convertible.

 

24

If a Security is converted in accordance with Article 9, then from and after the time of conversion on the Conversion Date, such Security shall cease to be outstanding and interest, if any, shall cease to accrue on such Security.

Section 2.09 . Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities and deliver them in exchange for temporary Securities.

Section 2.10 . Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment or cancellation and shall dispose of such cancelled securities in its customary manner. The Company may not issue new Securities to replace Securities it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article 9. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 2.10, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with the Trustee’s customary procedure.

Section 2.11 . Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered in the Register as the owner of such Security for the purpose of receiving payment of principal of the Security and interest thereon, for the purpose of conversion and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

Section 2.12 . Global Securities. (a) Notwithstanding any other provisions of this Indenture or the Securities, (1) transfers of a Global Security, in whole or in part, shall be made only in accordance with Section 2.06 and Section 2.12(a)(i), (2) transfers of a beneficial interest in a Global Security for a Certificated Security shall comply with Section 2.06 and Section 2.12(a)(ii), and (3) transfers of a Certificated Security shall comply with Sections 2.06 and 2.12(a)(iii) and (iv). Any such transfer shall comply with the Applicable Procedures to the extent so required.

(i) Transfer of Global Security . A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person may be registered; provided that this clause (i) shall not prohibit any transfer of a Security that is issued in exchange for a Global Security but is not itself a Global Security. No transfer of a Global Security to any Person shall be effective under this Indenture or the Securities unless and until such Global Security has been registered in the name of such Person. Nothing in this clause (i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Security effected in accordance with the other provisions of this Section 2.12(a).

 

25

(ii) Restrictions on Transfer of a Beneficial Interest in a Global Security for a Certificated Security . A beneficial interest in a Global Security may not be exchanged for a Certificated Security except:

(A) Certificated Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests if:

(1) DTC notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as Depositary, and in each case a successor Depositary is not appointed by the Company within 90 days of such notice; or

(2) the Company executes and delivers to the Trustee and Registrar an Officers’ Certificate stating that such Global Security shall be so exchangeable and the beneficial owners thereof consent to such issuance of Certificated Securities.

(B) The owner of a beneficial interest in a Global Security will be entitled to receive a Certificated Security in exchange for such interest if an Event of Default has occurred and is continuing.

In connection with the exchange of an entire Global Security for Certificated Securities pursuant to this clause (ii), such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon Company Order the Trustee shall authenticate and deliver, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Certificated Securities of authorized denominations.

Upon receipt by the Registrar of instructions from the Holder of a Global Security directing the Registrar to ( x ) issue one or more Certificated Securities in the amounts specified to the owner of a beneficial interest in such Global Security and ( y ) debit or cause to be debited an equivalent amount of beneficial interest in such Global Security, subject to the Applicable Procedures:

(1) the Registrar shall notify the Company and the Trustee of such instructions, identifying the owner and amount of such beneficial interest in such Global Security;

(2) the Company shall promptly execute, and upon Company Order the Trustee shall authenticate and deliver, to such beneficial owner Certificated Security(ies) in an equivalent amount to such beneficial interest in such Global Security; and

 

26

(3) the Registrar shall decrease such Global Security by such amount in accordance with the foregoing.

(iii) Transfer and Exchange of Certificated Securities . When Certificated Securities are presented to the Registrar with a request:

(A) to register the transfer of such Certificated Securities; or

(B) to exchange such Certificated Securities for an equal principal amount of Certificated Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided , however , that the Certificated Securities surrendered for transfer or exchange:

(1) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and

(2) so long as such Securities are Restricted Securities, such Securities are being transferred or exchanged pursuant to clauses ( u ), ( v ) or ( w ) below, and are accompanied by the following additional information and documents, as applicable:

(u) if such Certificated Securities are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect; or

(v) if such Certificated Securities are being transferred to the Company or any of its Subsidiaries, a certification from such Holder to that effect (in the form set forth in Exhibit B, if applicable); or

(w) if such Certificated Securities are being transferred in compliance with Rule 144A, a certification from such Holder to that effect (in the form set forth in Exhibit B, if applicable); or

(x) if such Certificated Securities are being transferred pursuant to Rule 144 under the Securities Act, a certification from such Holder to that effect (in the form set forth in Exhibit B, if applicable); or

(y) if such Certificated Securities are being transferred pursuant to another exemption from the registration requirements of the Securities Act, ( I ) a certification to that effect (in the form set forth in Exhibit B, if applicable) and ( II ) if the Company so requests, a legal opinion or other information as may be required to confirm that such transfer is being made pursuant to such other available exemption from the registration requirements of the Securities Act.

 

27

(iv) Restrictions on Transfer of a Certificated Security for a Beneficial Interest in a Global Security . A Certificated Security may not be exchanged for a beneficial interest in a Global Security except upon satisfaction of the requirements set forth below.

Upon receipt by the Trustee of a Certificated Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together with:

(A) so long as the Securities are Restricted Securities, certification, in the form set forth in Exhibit B, that such Certificated Security is being transferred in accordance with the Restricted Securities Legend; and

(B) written instructions directing the Trustee to make, or to direct the Registrar to make, an adjustment on its books and records with respect to such Global Security to reflect an increase in the aggregate principal amount of the Securities represented by the Global Security, such instructions to contain information regarding the Depositary account to be credited with such increase, then the Trustee shall cancel such Certificated Security and cause, or direct the Registrar to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Registrar, the aggregate principal amount of Securities represented by the Global Security to be increased by the aggregate principal amount of the Certificated Security to be exchanged, and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Security equal to the principal amount of the Certificated Security so cancelled. If no Global Securities are then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate, a new Global Security in the appropriate principal amount.

(b) Subject to Section 2.12(c), every Security shall be subject to the restrictions on transfer provided in Section 2.06(f), including the delivery of an opinion of counsel, if so required. Whenever any Restricted Security is presented or surrendered for registration of transfer or for exchange for a Security registered in a name other than that of the Holder, such Security must be accompanied by a certificate in substantially the form set forth in Exhibit B, dated the date of such surrender and signed by the Holder thereof, as to compliance with such restrictions on transfer. The Registrar shall not be required to accept for such registration of transfer or exchange any Security not so accompanied by a properly completed certificate.

(c) The restrictions imposed by Section 2.06(f) upon the transferability of any Security shall cease and terminate when such Security has been transferred in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if earlier, upon the Resale Restriction Delegending Date. Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 2.12, be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the legends required by Section 2.01(d). The Company shall inform the Trustee upon the occurrence of the Resale Restriction Delegending Date. The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the aforementioned opinion of counsel or registration statement.

 

28

(d) The provisions of clauses (i), (ii), (iii) and (iv) below shall apply only to Global Securities:

(i) Notwithstanding any other provisions of this Indenture or the Securities, except as provided in Section 2.12(a)(ii), a Global Security shall not be exchanged in whole or in part for a Security registered in the name of any Person other than the Depositary or one or more nominees thereof; provided that a Global Security may be exchanged for Securities registered in the names of any Person designated by the Depositary in the event that (A) the Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or such Depositary has ceased to be a “clearing agency” registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days or (B) an Event of Default has occurred and is continuing with respect to the Securities. Any Global Security exchanged pursuant to clause (A) above shall be so exchanged in whole and not in part, and any Global Security exchanged pursuant to clause (B) above may be exchanged in whole or from time to time in part as directed by the Depositary. Any Security issued in exchange for a Global Security or any portion thereof shall be a Global Security; provided that any such Security so issued that is registered in the name of a Person other than the Depositary or a nominee thereof shall not be a Global Security.

(ii) Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered by the Depositary to the Trustee, as Registrar. With regard to any Global Security to be exchanged in part, either such Global Security shall be so surrendered for exchange or, if the Trustee is acting as custodian for the Depositary or its nominee with respect to such Global Security, the principal amount thereof shall be reduced, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depositary or an authorized representative thereof.

(iii) Subject to the provisions of subsection (e) below, the registered Holder may grant proxies and otherwise authorize any Person, including Agent Members (as defined below) and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.

(iv) In the event of the occurrence of any of the events specified in clause (i) above, the Company will promptly make available to the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons.

 

29

(e) Neither any members of, or participants in, the Depositary (collectively, “ Agent Members ”) nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Security registered in the name of the Depositary or any nominee thereof, or under any such Global Security, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing 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 the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder. The registered 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 that a Holder is entitled to take under this Indenture or the Securities.

Section 2.13 . CUSIP and ISIN Numbers.

(a) The Company, in issuing the Securities, will use restricted CUSIP and ISIN numbers for such Securities (if then generally in use) until such time as the Restricted Securities Legend is removed pursuant to Section 2.06(i). At such time as the legend is removed from such Securities pursuant to Section 2.06(i), the Company will use an unrestricted CUSIP number for such Security, but only with respect to the Securities where the Restricted Securities Legend has been so removed. The Company shall promptly notify the Trustee in the event of any change in the CUSIP or ISIN numbers.

(b) The Company, upon issuing shares of Common Stock upon conversion of Securities, will use a restricted CUSIP number for such shares of Common Stock. With respect to such share of Common Stock, until such time as the Restricted Stock Legend is removed pursuant to Section 2.06(i) from such share of Common Stock, such restricted CUSIP will be the CUSIP number for such share of Common Stock. At such time as the Restrictive Stock Legend is removed from such share of Common Stock pursuant to Section 2.06(g) or Section 2.06(j) or otherwise, an unrestricted CUSIP number for such share of Common Stock will be deemed to be the CUSIP number therefor, but only with respect to the shares where so removed.

Section 2.14 . Additional Interest. As set forth in Sections 3.02(b) and (c), the Company may be obligated to pay Additional Interest to Holders. Additional Interest, if required to be paid, is deemed to be interest for purposes of this Indenture.

Section 2.15. No Redemption . The Company may not redeem the Securities prior to their maturity.

 

30

ARTICLE 3

C OVENANTS

Section 3.01 . Payment of Securities. The Company shall promptly make all payments in respect of the Securities on the dates and in the manner provided in the Securities or pursuant to this Indenture. Any amounts of cash or shares of Common Stock to be given to the Trustee or Paying Agent shall be deposited with the Trustee or Paying Agent by the open of business by the Company on the required date. The Company may, at its option, make payments in respect of the Securities by check mailed to a Holder’s registered address or, with respect to Global Securities, by wire transfer. The Company shall make any required interest payments to the Person in whose name each Security is registered at the close of business on the record date for such interest payment. Principal amount and accrued interest, if any, shall be considered paid on the applicable date due if on such date the Trustee or the Paying Agent holds, in accordance with this Indenture, cash sufficient to pay all such amounts then due.

Section 3.02 . SEC and Other Reports. (a)

(a) The Company shall furnish to the Trustee, within 15 days after the date on which the Company is required to file the same with the SEC pursuant to its rules and regulations, all annual and quarterly reports, information, documents and other reports 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 is at any time no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall continue to provide the Trustee with annual and quarterly reports containing substantially the same information as it would have been required to file with the SEC had the Company continued to have been subject to such reporting requirements. In such event, such annual and quarterly reports shall be provided at the times the Company would have been required to provide reports had it continued to have been subject to such reporting requirements. The Company shall also comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely conclusively on Officers’ Certificates).

(b) If, at any time during the period beginning on, and including, the date which is six months after the Last Original Issuance Date and ending on the Resale Restriction Delegending Date, the Company fails to timely file (which shall include any period of time allowed pursuant to Rule (and Form) 12b-25) any periodic report that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (other than current reports on Form 8-K), as applicable, the Company shall pay a one-time Additional Interest payment in respect of the Securities in the amount of 0.50% of the principal amount of Securities outstanding. The Company shall pay any such Additional Interest pursuant to this Section 3.02(b) on the next Interest Payment Date to the record holder, or, in the case of a converting Holder, upon the conversion of such Holder’s Securities.

(c) Unless, as of the Resale Restriction Delegending Date,

 

31

(i) the restrictive legend on the Securities has been removed, and

(ii) the Securities are freely tradable pursuant to Rule 144 under the Securities Act without volume restrictions by Holders other than Affiliates of the Company (without restrictions pursuant to U.S. securities law),

the Company shall pay Additional Interest on the Securities at an annual rate equal to 0.50% of the aggregate principal amount of the Securities. So long as a condition described in either (i) or (ii) of this Section 3.02(c) continues, the Company shall pay such Additional Interest on June 1 and December 1 of each year to the Person who is the Holder of record of the Securities on the immediately preceding May 15 and November 15, respectively. When neither of such conditions continues, accrued and unpaid Additional Interest through the date of cessation shall be paid in cash on the subsequent Interest Payment Date to the record Holder.

(d) In the event that the Company is required to pay Additional Interest to Holders pursuant to Sections 3.02(b) or (c) or any Extension Fee pursuant to Section 5.01, the Company shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of the Company’s obligation to pay such Additional Interest or Extension Fee no later than three Business Days prior to the date on which any such Additional Interest or Extension Fee is scheduled to be paid. Such notice shall set forth the amount of Additional Interest or Extension Fee to be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it receives funds from the Company to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether Additional Interest or Extension Fee is payable, or with respect to the nature, extent, or calculation of the amount of Additional Interest or Extension Fee owed, or with respect to the method employed in such calculation of Additional Interest or Extension Fee.

Section 3.03 . Compliance Certificate. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year (beginning with the fiscal year ending January 30, 2010) of the Company an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof, the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

Section 3.04 . 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 Indenture.

Section 3.05 . Maintenance of Office or Agency. The Company will maintain in New York, New York, an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer, exchange or conversion and where notices and demands in respect of the Securities and this Indenture may be served. The office of The Bank of New York Mellon, at 101 Barclay Street, Fl. 8W, New York, New York 10286, Attention: Corporate Trust Administration, shall initially be such office or agency for all of the aforesaid purposes.

 

32

The Company shall give prompt written notice to the Trustee of the location, and of any change in the location, of any such office or agency (other than a change in the location of the Corporate Trust Office of the Trustee). 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 address of the Trustee set forth in Section 11.02.

The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in New York, New York, for such purposes.

Section 3.06 . Delivery Of Certain Information. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any beneficial owner of Securities or holder or beneficial owner of shares of Common Stock issued upon conversion thereof, the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder or any beneficial owner of Securities or holder or beneficial owner of shares of Common Stock, or to a prospective purchaser of any such security designated by any such holder, as the case may be, to the extent required to permit compliance by such Holder or holder with Rule 144A under the Securities Act in connection with the resale of any such security. “ Rule 144A Information ” shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a Person is a beneficial owner shall be determined by the Company to the Company’s reasonable satisfaction.

Section 3.07. Guarantees . Each of the Guarantors and the Company will, and the Company will cause each of the Guarantors to, ensure at all times that, unless otherwise permitted by this Indenture, each Guarantee will remain in full force and effect and shall not be subordinated in right of payment by written agreement to any Indebtedness or other obligations of the Guarantors, unless required by applicable law.

Section 3.08. Additional Guarantors . The Company will cause each of its Wholly Owned Subsidiaries that becomes a guarantor in respect of the Credit Facility following the date hereof to execute and deliver a supplemental indenture pursuant to which it will become a Guarantor under this Indenture in accordance with Section 12.03.

ARTICLE 4

S UCCESSOR C ORPORATION

Section 4.01 . When Company May Merge Or Transfer Assets. The Company shall not consolidate with or merge into any other Person or sell, transfer or lease all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any other Person, in any one transaction or series of related transactions, or permit any Person to consolidate with or merge into the Company, unless:

(a) either (i) the Company shall be the surviving Person or (ii) if the Company is not the surviving Person, then either the surviving Person formed by such consolidation or into which the Company is merged or the Person to which the consolidated properties and assets of the Company and its Subsidiaries are so transferred shall be a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia; provided that the surviving Person shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the payment when due of the principal of and interest on the Securities and the performance of each of the Company’s other covenants under the Securities and this Indenture;

 

33

(b) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and

(c) the Company shall have delivered to the Trustee an Officers’ Certificate stating that such consolidation, merger, sale, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article 4 and that all conditions precedent herein provided for relating to such transaction have been satisfied.

The successor Person formed by such consolidation or into which the Company is merged or the successor Person to which such sale, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein; and thereafter, except in the case of a lease, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 8.06, the Company, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company.

ARTICLE 5

D EFAULTS A ND R EMEDIES

Section 5.01 . Events Of Default. Each of the following events shall be an “ Event of Default ”:

(a) the Company defaults for 30 days in the payment of any interest due and payable on the Securities;

(b) the Company defaults in the payment of all or any part of the principal on the Securities and accrued and unpaid interest when the same becomes due and payable at its Maturity Date;

(c) the Company defaults in its obligation to convert the Securities in accordance with this Indenture upon conversion of any Securities;

(d) a default by the Company or any of its Subsidiaries under any instrument or instruments evidencing Indebtedness (other than the Securities) having an outstanding principal amount of $25,000,000 (or its equivalent in any other currency or currencies) or more that has caused the holders thereof to declare such Indebtedness to be due and payable prior to its stated maturity;

 

34

(e) a default in the payment of the Company’s or any of its Subsidiaries’ Indebtedness for money borrowed in an aggregate principal amount exceeding $25,000,000 (or its equivalent in any other currency or currencies) when such Indebtedness becomes due and payable at final maturity;

(f) the Company defaults in its performance of any other covenants or agreements in respect of the Securities contained in this Indenture for 60 days after receipt by the Company of a Notice of Default from the Trustee or after receipt by the Company and the Trustee of a Notice of Default from the Holders of at least 25% in aggregate principal amount of the Securities then outstanding;

(g) the Company or any Material Subsidiary pursuant to or within the meaning of any Bankruptcy Law:

(i) commences a voluntary case;

(ii) consents to the entry of an order for relief against it in an involuntary case;

(iii) consents to the appointment of a Custodian of it or for any substantial part of its property;

(iv) makes a general assignment for the benefit of its creditors; or

(v) takes any comparable action under any foreign laws relating to insolvency;

(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(i) is for relief against the Company or any Material Subsidiary in an involuntary case;

(ii) appoints a Custodian of the Company or any Material Subsidiary or for any substantial part of its property;

(iii) orders the winding up or liquidation of the Company or any Material Subsidiary; or

(iv) grants any similar relief under any foreign laws;

and in each such case the order or decree remains unstayed and in effect for 60 days; or

(i) there occurs a Change of Control.

The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.

 

35

The term “ Bankruptcy Law ” means Title 11, United States Code, or any similar Federal, state or non-U.S. law for the relief of debtors. The term “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

A Default under Section 5.01(f) is not an Event of Default until the Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then outstanding notify the Company (and in the case of such notice by Holders, the Trustee) of the Default and the Company does not cure such Default within the time specified after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default ”.

The Company shall deliver to the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice in the form of an Officers’ Certificate of any event which is a Default or Event of Default, its status and w