INDENTURE

 

TABLE OF CONTENTS

 

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ARTICLE I	DEFINITIONS AND INCORPORATION BY REFERENCE		1
Section 1.01.		Definitions	1
Section 1.02.		Other Definitions	8
Section 1.03.		Incorporation by Reference of the Trust Indenture Act	9
Section 1.04.		Effect of Headings and Table of Contents	10
ARTICLE II	THE SECURITIES		10
Section 2.01.		Designation, Amount and Issue of the Securities	10
Section 2.02.		Form of Securities	10
Section 2.03.		Date and Denomination of Securities; Payment of Interest	11
Section 2.04.		Execution of Securities	12
Section 2.05.		Registrar, Paying Agent and Conversion Agent	13
Section 2.06.		Restrictions on Transfer	13
Section 2.07.		Book-Entry Provisions for and Restrictions on Transfer and Exchange of Global Securities	15
Section 2.08.		Ranking	17
Section 2.09.		Mutilated, Destroyed, Lost and Stolen Securities	17
Section 2.10.		[RESERVED]	17
Section 2.11.		Cancellation of Securities	17
Section 2.12.		CUSIP Numbers	18
ARTICLE III	REDEMPTION AND REPURCHASE		18
Section 3.01.		Redemption and Repurchase	18
Section 3.02.		Notices to Trustee	19
Section 3.03.		Selection of Securities to Be Redeemed	19
Section 3.04.		Notice of Redemption	19
Section 3.05.		Effect of Notice of Redemption	20
Section 3.06.		Deposit of Redemption Price	21
Section 3.07.		Payment of Securities Called for Redemption by the Company	21
Section 3.08.		Securities Redeemed in Part	21
Section 3.09.		Repurchase of Securities at Option of the Holder	22
Section 3.10.		[RESERVED]	25
Section 3.11.		Repurchase at Option of Holder Upon a Fundamental Change	25
ARTICLE IV	COVENANTS		31
Section 4.01.		Payment of Principal, Interest and Additional Interest	31

 

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TABLE OF CONTENTS

(continued)

 

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Section 4.02.		Maintenance of Office or Agency	31
Section 4.03.		Money for Securities Payments to be Held in Trust	31
Section 4.04.		[RESERVED]	32
Section 4.05.		Statement by Officers as to Default	32
Section 4.06.		Rule 144A Information Requirement	32
Section 4.07.		SEC Report and Report to Trustee	33
Section 4.08.		Corporate Existence	33
Section 4.09.		Additional Interest Notice	33
Section 4.10.		[RESERVED]	34
Section 4.11.		Further Instruments and Acts	34
ARTICLE V	DEFAULTS AND REMEDIES		34
Section 5.01.		Events of Default	34
Section 5.02.		Acceleration	36
Section 5.03.		Collection of Indebtedness and Suits for Enforcement by Trustee	36
Section 5.04.		Trustee May File Proofs of Claim	37
Section 5.05.		Trustee May Enforce Claims Without Possession of Securities	37
Section 5.06.		Application of Money Collected	37
Section 5.07.		Limitation on Suits	38
Section 5.08.		Rights of Holders to Convert Securities	38
Section 5.09.		Notice of Defaults	39
Section 5.10.		Unconditional Rights of Holders to Receive Principal, Additional Interest and Interest	39
Section 5.11.		Restoration of Rights and Remedies	39
Section 5.12.		Rights and Remedies Cumulative	39
Section 5.13.		Delay or Omission Not Waiver	39
Section 5.14.		Control by Holders	40
Section 5.15.		Waiver of Past Defaults	40
Section 5.16.		Undertaking for Costs	40
Section 5.17.		Waiver of Usury, Stay or Extension Laws	40
ARTICLE VI	THE TRUSTEE		41
Section 6.01.		Certain Duties and Responsibilities	41
Section 6.02.		Reliance on Documents, Opinions, etc.	41
Section 6.03.		[RESERVED]	42

 

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TABLE OF CONTENTS

(continued)

 

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Section 6.04.		[RESERVED]	42
Section 6.05.		Not Responsible for Recitals or Issuance of Securities	42
Section 6.06.		May Hold Securities	42
Section 6.07.		Money Held in Trust	43
Section 6.08.		Compensation, Reimbursement and Indemnification	43
Section 6.09.		Conflicting Interests	43
Section 6.10.		Corporate Trustee Required; Eligibility	44
Section 6.11.		Resignation and Removal; Appointment of Successor	44
Section 6.12.		Acceptance of Appointment by Successor	45
Section 6.13.		Merger, Conversion, Consolidation or Succession to Business of Trustee	45
Section 6.14.		Preferential Collection of Claims Against Company	46
Section 6.15.		Appointment of Authenticating Agent	46
ARTICLE VII	CONSOLIDATION, MERGER AND SALES OF ASSETS		47
Section 7.01.		Company May Consolidate, Etc., Only on Certain Terms	47
Section 7.02.		Successor Substituted	48
Section 7.03.		Guarantor May Consolidate on Certain Terms	48
Section 7.04.		Guarantor Successor to be Substituted	48
ARTICLE VIII	SATISFACTION AND DISCHARGE		49
Section 8.01.		Termination of the Obligations of the Company	49
Section 8.02.		Application of Trust Money	49
ARTICLE IX	SUPPLEMENTAL INDENTURES		49
Section 9.01.		Supplemental Indentures Without Consent of Holders	49
Section 9.02.		Supplemental Indentures or Waivers With Consent of Holders	50
Section 9.03.		Compliance with Trust Indenture Act	51
Section 9.04.		Revocation and Effect of Consents	51
Section 9.05.		Notation on or Exchange of Securities	52
Section 9.06.		Trustee Protected	52
ARTICLE X	CONVERSION		52
Section 10.01.		Conversion Privilege	52
Section 10.02.		Conversion Procedure and Payment Upon Conversion	55
Section 10.03.		Fractional Shares	58
Section 10.04.		Taxes on Conversion	58

 

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TABLE OF CONTENTS

(continued)

 

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Section 10.05.		Company to Provide Stock	58
Section 10.06.		Adjustment of Conversion Rate	58
Section 10.07.		No Adjustment	63
Section 10.08.		Other Adjustments	64
Section 10.09.		Adjustments for Tax Purposes	65
Section 10.10.		Notice of Adjustment	65
Section 10.11.		Notice of Certain Transactions	65
Section 10.12.		Effect of Reclassifications, Consolidations, Amalgamations, Statutory Arrangements, Mergers, Binding Share Exchanges or Asset Sales on Conversion Privilege	65
Section 10.13.		Trustee’s Disclaimer	67
Section 10.14.		Rights Distributions Pursuant to Stockholders’ Rights Plans	67
Section 10.15.		Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection With Make-Whole Fundamental Changes	68
Section 10.16.		Additional Interest	70
Section 10.17.		Ownership Limit	70
ARTICLE XI	LIST OF SECURITYHOLDERS AND REPORTS BY TRUSTEE AND COMPANY		71
Section 11.01.		Company to Furnish Trustee Names and Addresses of Holders	71
Section 11.02.		Preservation of Information; Communications to Holders	71
Section 11.03.		Reports by Trustee	71
ARTICLE XII	THE SECURITYHOLDERS		71
Section 12.01.		Action by Securityholders	71
Section 12.02.		Proof of Execution by Securityholders	72
Section 12.03.		Absolute Owners	72
Section 12.04.		Company-owned Securities Disregarded	72
Section 12.05.		Revocation of Consents; Future Holders Bound	73
ARTICLE XIII	MEETINGS OF THE SECURITYHOLDERS		73
Section 13.01.		Purposes for Which Meetings May Be Called	73
Section 13.02.		Call, Notice and Place of Meetings	73
Section 13.03.		Persons Entitled to Vote at Meetings	73
Section 13.04.		Quorum; Action	74
Section 13.05.		Determination of Voting Rights; Conduct and Adjournment of Meetings	74
Section 13.06.		Counting Votes and Recording Action of Meetings	75

 

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TABLE OF CONTENTS

(continued)

 

					Page
ARTICLE XIV		GUARANTY			75
Section 14.01.				Guaranty	75
Section 14.02.				Execution and Delivery of Guaranty	76
Section 14.03.				Limitation of Guarantor’s Liability; Certain Bankruptcy Events	77
Section 14.04.				[RESERVED]	77
Section 14.05.				Application of Certain Terms and Provisions to the Guarantor	77
Section 14.06.				Subordination of Subrogation and Other Rights	78
ARTICLE XV		MISCELLANEOUS			78
Section 15.01.				Conflict with Trust Indenture Act	78
Section 15.02.				Notices	78
Section 15.03.				Successors	79
Section 15.04.				Governing Law	79
Section 15.05.				Waiver of Jury Trial	79
Section 15.06.				Force Majeure	79
Section 15.07.				Severability Clause	80
Section 15.08.				Benefits of Indenture	80
Section 15.09.				Acts of Holders; Record Dates	80
Section 15.10.				Legal Holidays	80
Section 15.11.				No Personal Liability	81
Section 15.12.				Evidence of Compliance with Conditions Precedent; Certificates to Trustee	81
Section 15.13.				No Adverse Interpretation of Other Agreements	81
Section 15.14.				Calculations in Respect of the Securities	81
Exhibit A	—		Form of Global Security
Exhibit B	—		Form of Guaranty

 

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INDENTURE

 

This Indenture, dated as of April 27, 2009, among Alexandria Real Estate Equities, Inc., a corporation duly organized and existing under the laws of the State of Maryland (the “ Company ”), and Alexandria Real Estate Equities, L.P., a limited partnership duly organized and existing under the laws of the State of Delaware (the “ Guarantor ”), each having its principal offices at 385 East Colorado Boulevard, Suite 299, Pasadena, California 91101, and Wilmington Trust Company, a Delaware banking corporation (the “ Trustee ”), having its principal offices at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19801.

 

RECITALS:

 

WHEREAS, the Company and the Guarantor have each duly authorized the execution and delivery of this Indenture to provide for the future issuance of the Company’s senior debt securities to be known as its 8.00% Senior Convertible Notes due 2029 (the “ Securities ”), guaranteed to the extent provided herein (the “ Guaranty ”) by the Guarantor, the form and substance of such Securities and the terms, provisions and conditions thereof to be set forth as provided in the Indenture.

 

WHEREAS, each of the Company and the Guarantor have taken all actions necessary to make this Indenture a valid and legally binding agreement of the Company and the Guarantor, in accordance with its terms.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:

 

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.01.                  Definitions .

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(A)          The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(B)           All other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(C)           All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “ generally accepted accounting principles ” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;

 

 

(D)          Unless otherwise specifically set forth herein, all calculations or determinations of a Person shall be performed or made on a consolidated basis in accordance with generally accepted accounting principles;

 

(E)           Unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and

 

(F)           The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

“ Act ,” when used with respect to any Holder, has the meaning specified in Section 15.09 of this Indenture.

 

“ Additional Interest ” means a one-time payment of 50 basis points made by the Company to the Holders of the Securities (or, with respect to any Securities that have been previously converted, to the Holders of such converted Securities at the time of such conversion) in the circumstances described in Section 10.16.  The amount of the payment to any Holder (or previous Holder in the case of previously converted Securities) shall be determined by applying 50 basis points to the current principal amount of such Holder’s Securities then outstanding and to the principal amount of such previous Holder’s converted Securities immediately prior to their conversion.

 

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“ Agent ” means any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent (as defined below) or co-Registrar or co-agent.

 

“ Asset Sale Make-Whole Fundamental Change ” means a sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act.

 

“ Bid Solicitation Agent ” means a Company-appointed agent that performs calculations as set forth in Section 10.01 hereof.

 

“ Board ” means either the board of directors of the Company or the board of directors of the General Partner or any duly authorized committee of each of those boards.

 

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the General Partner to have been duly adopted by the applicable Board and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“ Business Day ,” when used with respect to any place of payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that place of payment are authorized or obligated by law or executive order to close.

 

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“ Capital Stock ” of any Person means any and all shares, interests, participations or other equivalents (however designated) of capital stock of such Person and all warrants or options to acquire such capital stock.

 

“ Closing Sale Price ” on any date means the price of a share of Common Stock on such date, determined (i) on the basis of the closing sale price per share (or if no closing sale price per share is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on such date on the U.S. principal national or regional securities exchange on which the Common Stock is listed; or (ii) if the Common Stock is not listed on a U.S. national or regional securities exchange, as reported by the National Association of Securities Dealers Automated Quotation System; or (iii) if not so reported, as reported by Pink Sheets LLC or a similar organization.  In the absence of a quotation, the Closing Sale Price shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

“ Commission ” or “ SEC ” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“ Common Stock ” means the common stock, $0.01 par value per share, of the Company, or such other Capital Stock of the Company into which the Company’s common stock is reclassified or changed.

 

“ Common Stock Change Make-Whole Fundamental Change ” means any transaction or series of related transactions (other than a Listed Stock Business Combination), in connection with which (whether by means of an exchange offer, liquidation, tender offer, consolidation, amalgamation, statutory arrangement, merger, combination, reclassification, recapitalization, asset sale, lease of assets or otherwise) the Common Stock is exchanged for, converted into, acquired for or constitutes solely the right to receive other securities, other property, assets or cash.

 

“ Company ” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

“ Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.

 

“ Conversion Price ” means, as of any date of determination, the dollar amount derived by dividing one thousand dollars ($1,000) by the Conversion Rate in effect on such date.

 

“ Conversion Rate ” means the number of shares of Common Stock issuable upon conversion of a Security per $1,000 principal amount, which Conversion Rate shall initially be 24.1546 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment as provided in Section 10.06 hereof.

 

“ Corporate Trust Office ” means the principal office of the Trustee at which, at any particular time its corporate trust business shall be administered.

 

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“ Corporation ” means a corporation, association, company, joint-stock company, real estate investment trust or business trust.

 

“ Custodian ” means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.

 

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

 

“ Defaulted Interest ” has the meaning specified in Section 2.03 of this Indenture.

 

“ Depositary ” means, with respect to Securities issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 2.07 of this Indenture.

 

“ DTC ” means The Depository Trust Company, its nominees and successors.

 

“ Exchange Act ” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

 

“ General Partner ” means ARS-QRS Corp., the sole general partner of the Guarantor or any successor general partner of the Guarantor.

 

“ Global Security ” means a Security that evidences all or part of the Securities and bears the legend set forth in Section 2.06 of this Indenture.

 

“ Guarantor ” means the Person named as the “Guarantor” in the first paragraph of this Indenture until a successor and/or additional Person(s) shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor and/or additional Person(s).

 

“ Guaranty ” has the meaning given in the Recitals hereof and as contemplated by Article XIV hereof.

 

“ Holder ” or “ Securityholder ” means a person in whose name a Security is registered on the register of the Registrar (as defined below).

 

“ Indebtedness ” of a Person means the principal of, premium, if any and interest on and all other obligations in respect of (a) all indebtedness of such Person for borrowed money (including all indebtedness evidenced by notes, bonds, debentures or other securities), (b) all obligations incurred by such Person in the acquisition (whether by way of purchase, merger, consolidation or otherwise and whether by such Person or another Person) of any business, real property or other assets, (c) all reimbursement obligations of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person, (d) all capital lease obligations of such Person, (e) all net obligations of such Person under interest rate swap, currency exchange or similar agreements of such Person, (f) all obligations and other liabilities, contingent or otherwise, under any lease or related document, including a purchase agreement, conditional sale or other title retention agreement, in connection with the lease of real property or improvements thereon (or any personal property included as part of any such lease) which provides that such Person is contractually obligated to purchase or cause a third party to purchase the leased property or pay an agreed-upon residual value of the leased property, including such Person’s obligations under such lease or related document to purchase or cause a third party to purchase such leased property or pay an agreed-upon residual value of the leased property to the

 

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lessor, (g) guarantees by such Person of indebtedness described in clauses (a) through (f) of another Person, and (h) all renewals, extensions, refundings, deferrals, restructurings, amendments and modifications of any indebtedness, obligation, guarantee or liability of the kind described in clauses (a) through (g).

 

“ Indenture ” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.

 

“ Initial Purchasers ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities, Inc. and Citigroup Global Markets Inc.

 

“ Interest Payment Date ” means each April 15 and October 15 of each year beginning on October 15, 2009.

 

“ Investment Company Act ” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

“ Issue Date ” means April 27, 2009.

 

“ Make-Whole Fundamental Change ” means an Asset Sale Make-Whole Fundamental Change or a Common Stock Change Make-Whole Fundamental Change that occurs prior to the Maturity Date.

 

“ Market Disruption Event ” generally means either (i) a failure by the primary U.S. national securities exchange or market on which the Common Stock is listed or admitted to trading to open for trading during its regular trading session; or (ii) the occurrence or existence, prior to 1:00 p.m. New York City Time on any day during which trading in the Common Stock generally occurs on the primary U.S. national securities exchange or market on which the Common Stock is listed or admitted to trading, for an aggregate of at least thirty (30) minutes, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock.

 

“ Maturity Date ” means April 15, 2029.

 

“ Notice of Default ” means a written notice of the kind specified in Section 5.01 hereof.

 

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

 

“ Officers’ Certificate ” means a certificate signed by (i) the Chairman of the Board, the Chief Executive Officer, the Chief Operating Officer (if any), the President or a Vice President, and (ii) the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.

 

“ Offering Memorandum ” means the confidential offering memorandum dated April 21, 2009, relating to the private placement of up to $260,000,000 aggregate principal amount of the Securities (assuming full exercise by the Initial Purchasers of the $35,000,000 option described therein).

 

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“ Opinion of Counsel ” means a written opinion of legal counsel reasonably acceptable to the Trustee, who may be counsel for the Company.

 

“ outstanding ,” when used with respect to Securities, and subject to the provisions of Section 12.04, means, as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:

 

(i)            Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)           Securities, or portions thereof, (a) for the redemption or repurchase of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company or the Guarantor) or (b) which shall have been otherwise discharged in accordance with Article VIII;

 

(iii)          Securities in lieu of which, or in substitution for which, other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.09; and

 

(iv)          Securities converted pursuant to Article X, and Securities paid or redeemed or repurchased pursuant to Article III.

 

“ Over-Allotment Option ” means the Initial Purchasers’ option to acquire up to $35,000,000 aggregate principal amount of additional Securities as provided for in the Purchase Agreement.

 

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

 

“ Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.09 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“ Purchase Agreement ” means the Purchase Agreement dated April 21, 2009, among the Company, the Guarantor and the Initial Purchasers.

 

“ Purchase Notice ” means a Purchase Notice in the form set forth in the Securities.

 

“ Record Date ” with respect to the payment of interest of any Interest Payment Date has the meaning specified in Section 2.03 hereof.

 

“ Redemption Date ,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture, which date shall be a Business Day.

 

“ Redemption Price ,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

“ Registrar ” have the meaning specified in Section 2.05 of this Indenture.

 

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“ Regular Quarterly Cash Dividend ” shall mean any regular quarterly cash dividend paid in a single quarterly installment or any combination of cash dividends paid in any calendar quarter that are designated by the Company pursuant to a resolution of the Board as being portions of the Company’s regular quarterly cash dividend and that are paid in lieu of a single regular quarterly cash dividend ( provided , that, in the case of a regular quarterly cash dividend paid in portions, the aggregate amount of such portions is no greater than the regular quarterly cash dividend paid in the immediately preceding calendar quarter).

 

“ Responsible Officer ,” when used with respect to the Trustee, means any vice president, the treasurer, any assistant treasurer, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“ Securities ” means the 8.00% Senior Convertible Notes due 2029 issued by the Company pursuant to this Indenture.

 

“ Securities Act ” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

 

“ Significant Subsidiary ” means any Subsidiary which is a “significant subsidiary” (as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated under the Securities Act) of the Company.

 

“ Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.03.

 

“ Subsidiary ” means a corporation 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, or by the Company and one or more other Subsidiaries.  For the purposes of this definition, “ voting stock ” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

 

“ Trading Day ” means any day during which:  (i) trading in the Common Stock generally occurs on the primary U.S. national securities exchange or market on which the Common Stock is listed or admitted to trading; (ii) there is no Market Disruption Event; and (iii) a closing sale price for the Common Stock is provided on the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded.

 

“ Trading Price ” means, on any day, the average of the secondary market bid quotations for the Securities obtained by the Bid Solicitation Agent for five million dollars ($5,000,000) principal amount of Securities at approximately 4:00 p.m., New York City time, on such day, from three (3) independent, nationally recognized securities dealers selected by the Company; provided , that if the Bid Solicitation Agent can reasonably obtain only two (2) such bids, then the average of such two (2) bids shall instead be used; provided further , that if the Bid Solicitation Agent can reasonably obtain only one (1) such bid, then such bid shall instead be used; provided further , that if, on a given date, the Bid Solicitation Agent cannot reasonably obtain at least one (1) bid for five million dollars ($5,000,000) principal amount of Securities from an independent, nationally recognized securities dealer, or if, in the reasonable, good faith judgment of the Board of the Company, the bid quotation or quotations that the Bid Solicitation Agent has obtained

 

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are not indicative of the secondary market value of the Securities, then, in each case, the Trading Price per $1,000 principal amount of Securities on such day shall be deemed to be equal to 98% of the product of the Closing Sale Price in effect on such day and the Conversion Rate in effect on such day.

 

“ Trustee ” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

 

“ Trust Indenture Act ” means the Trust Indenture Act of 1939 as in force at the date this instrument is executed; provided , however , that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment or as provided in Section 9.03 hereof, the Trust Indenture Act of 1939 as so amended.

 

“ Vice President ,” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”

 

Section 1.02.                  Other Definitions .

 

Term		Defined in Section
“ Additional Interest Notice ”		4.09
“ Additional Securities ”		2.01
“ Agent Members ”		2.06
“ Aggregate Amount ”		10.06
“ Applicable Price ”		10.15
“ Asset Sale Control Change ”		3.11
“ Authentication Order ”		2.01
“ Bankruptcy Law ”		5.01
“ BCF Make-Whole Cap ”		10.15
“ Benefited Party ”		14.01
“ Cash Settlement Averaging Period ”		10.02
“ Change in Control ”		3.11
“ Collective Election ”		10.12
“ Common Stock Legend ”		2.06
“ Conversion Agent ”		2.05
“ Conversion Date ”		10.02
“ Conversion Shares ”		10.06
“ Conversion Value ”		10.01
“ current market price ”		10.06
“ CUSIP ”		2.12
“ Custodian ”		5.01
“ Daily Conversion Value ”		10.02
“ Daily Measurement Value ”		10.02
“ Daily Settlement Amount ”		10.02
“ Distribution Date ”		10.06
“ Effective Date ”		10.15
“ Event of Default ”		5.01
“ Ex Date ”		10.06
“ Expiration Date ”		10.06
“ Expiration Time ”		10.06

 

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Term		Defined in Section
“ Extension Period ”		10.01
“ Fundamental Change ”		3.11
“ Fundamental Change Notice ”		3.11
“ Fundamental Change Repurchase Date ”		3.11
“ Fundamental Change Repurchase Price ”		3.11
“ Fundamental Change Repurchase Right ”		3.11
“ Global Security ”		2.02
“ Guaranty Obligations ”		14.01
“ Listed Stock Business Combination ”		3.11
“ Make-Whole Applicable Increase ”		10.15
“ Make-Whole Consideration ”		10.15
“ Make-Whole Conversion Period ”		10.15
“ Notice of Default ”		5.01
“ Option Repurchase Date ”		3.09
“ Option Repurchase Notice ”		3.09
“ Option Repurchase Price ”		3.09
“ Participants ”		2.07
“ Paying Agent ”		2.05
“ Physical Securities ”		2.07
“ record date ”		10.06
“ Redemption ”		3.01
“ Reference Dividend Amount ”		10.06
“ Reference Property ”		10.12
“ Relevant Date ”		10.02
“ Repurchase at Holder’s Option ”		3.01
“ Repurchase Upon Fundamental Change ”		3.01
“ Repurchased Shares ”		10.06
“ Restricted Securities ”		2.06
“ Restricted Securities Legend ”		2.06
“ Rights ”		10.06
“ Security Measurement Period ”		10.01
“ Settlement Amount”		10.02
“ Specified Dollar Amount ”		10.02
“ Spin-Off ”		10.06
“ Termination of Trading ”		3.11
“ Trading Price Condition ”		10.01
“ transfer ”		2.06
“ Trigger Event ”		10.06
“ Underlying Shares ”		10.06
“ Volume-Weighted Average Price ”		10.02
“ Voting Stock ”		3.11

 

Section 1.03.                  Incorporation by Reference of the Trust Indenture Act .

 

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

 

“ indenture securities ” means the Securities;

 

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“ indenture security holder ” means a Securityholder or a Holder;

 

“ indenture to be qualified ” means this Indenture;

 

“ indenture trustee ” or “ institutional trustee ” means the Trustee; and

 

“ obligor ” on the indenture securities means the Company or any successor.

 

All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by the Trust Indenture Act by reference to another statute or defined by Commission rule under the Trust Indenture Act and not otherwise defined herein have the meanings so assigned to them.

 

Section 1.04.                  Effect of Headings and Table of Contents .

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

ARTICLE II

 

THE SECURITIES

 

Section 2.01.                  Designation, Amount and Issue of the Securities

 

The Securities shall be designated as “ 8.00% Senior Convertible Notes due 2029 .” Upon the execution of this Indenture, and from time to time thereafter, Securities may be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver Securities upon a written order of the Company, such order signed by two Officers (an “ Authentication Order ”), without any further action by the Company hereunder.

 

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited; provided that upon initial issuance, the aggregate principal amount of Securities outstanding shall not exceed $260,000,000 (including any issuance upon exercise of the Over-Allotment Option described in the Purchase Agreement), except as provided in Section 2.09.  The Company may, without the consent of the Holders of Securities, issue additional Securities (the “ Additional Securities ”) from time to time in the future with the same terms and the same CUSIP number as the Securities originally issued under this Indenture (the “ Initial Securities ”) in an unlimited principal amount, provided that such Additional Securities must be part of the same issue as and fungible with the Initial Securities for United States federal income tax purposes.  The Initial Securities and any such Additional Securities will constitute a single series of debt securities, and in circumstances in which this Indenture provides for the Holders of Securities to vote or take any action, the Holders of Initial Securities and the Holders of any such Additional Securities will vote or take that action as a single class.

 

Section 2.02.                  Form of Securities .

 

The Securities and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A and the notation of Guaranty shall be substantially in the form set forth in Exhibit B , each of which are incorporated in and form a part of this Indenture.  The terms and provisions contained in the form of Security attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

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Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the Custodian, the Depositary or the Financial Industry Regulatory Authority in order for the Securities to be tradable on The PORTAL Market or as may be required for the Securities to be tradable on any other market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Securities are subject.

 

So long as the Securities are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.07, all of the Securities will be represented by one or more Securities in global form registered in the name of the Depositary or the nominee of the Depositary (a “ Global Security ”).  The transfer and exchange of beneficial interests in any such Global Security shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.07, beneficial owners of a Global Security shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered Holders of such Global Security.

 

Any Global Security shall represent such of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, exchanges, or transfers permitted hereby.  Any endorsement 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 Registrar or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Securities in accordance with this Indenture.  Payment of principal of, interest on and Additional Interest, if any, on any Global Security shall be made to the Holder of such Security.

 

Section 2.03.                  Date and Denomination of Securities; Payment of Interest .

 

The Securities shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof.  Each Security shall be dated the date of its authentication and shall bear interest at the rate and from the date specified on the face of the form of Security attached as Exhibit A hereto.  Interest on the Securities shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

The Person in whose name any Security (or its Predecessor Security) is registered on the register of the Registrar (as defined below) at 5:00 p.m., New York City time, on any Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.  Notwithstanding the foregoing, any Security or portion thereof surrendered for redemption during the period from 5:00 p.m., New York City time, on the Record Date for any Interest Payment Date to 5:00 p.m., New York City time, on the applicable Interest Payment Date must be accompanied by payment, in immediately available funds or other funds acceptable to the Company, of an amount equal to the interest otherwise payable on such Interest Payment Date on the principal amount being redeemed; provided , however , that no such payment need be made (1) if the Company redeems its Securities in connection with a Redemption and the Company has specified a Redemption Date that is after a Record Date and on or prior to the Business Day immediately succeeding such Interest Payment Date, (2) if a

 

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Holder exercises its Fundamental Change Repurchase Right and the Company has specified a Fundamental Change Repurchase Date that is after a Record Date and on or prior to such Interest Payment Date or (3) to the extent of any Defaulted Interest (as defined below), if any Defaulted Interest (as defined below) exists at the time of Redemption or Repurchase Upon Fundamental Change with respect to such Security.  Interest shall be payable at the office of the Company maintained by the Company for such purposes, which shall initially be an office or agency of the Trustee.  The Company shall pay interest (i) on any Securities in certificated form by check mailed to the address of the Person entitled thereto as it appears in the register of the Registrar (as defined below); provided , however , that a Holder of any Securities in certificated form in the aggregate principal amount of more than $5.0 million may specify by written notice to the Company that it pay interest by wire transfer of immediately available funds to the account specified by the Securityholder in such notice, or (ii) on any Global Security by wire transfer of immediately available funds to the account of the Depositary or its nominee.  If a payment date is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue thereon.  The term “ Record Date ” with respect to any Interest Payment Date shall mean the April 1 or October 1 preceding the applicable April 15 or October 15 Interest Payment Date, respectively.

 

Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any April 15 or October 15 or the date of any other interest payment specified under this Indenture (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the Securityholder registered as such on the relevant Record Date, and such Defaulted Interest shall be paid by the Company as provided in the paragraph below.  Interest shall accrue on unpaid Defaulted Interest at an annual rate of 1.0% above the then applicable interest rate from and including the date that such Defaulted Interest arises until such Defaulted Interest is either paid by the Company as provided in the following paragraph or paid by application of money collected in accordance with Section 5.06 hereof.

 

The Company shall make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at 5:00 p.m., New York City time, on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment (which shall be not less than twenty-five (25) calendar days after the receipt by the Trustee of such notice), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment, and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at its address as it appears in the register of the Registrar, not less than ten (10) calendar days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at 5:00 p.m., New York City time, on such Special Record Date.

 

Section 2.04.                  Execution of Securities .

 

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The Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signature of an Officer.  Only such Securities as shall bear thereon a certificate of authentication substantially in the form set forth on the form of Security attached as Exhibit A hereto, executed manually by the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 6.15), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee (or such an authenticating agent) upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

 

In case any Officer who shall have signed any of the Securities shall cease to be such Officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such Officer, and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper Officers, although at the date of the execution of such Security any such person was not such an Officer.

 

Section 2.05.                  Registrar, Paying Agent and Conversion Agent .

 

The Company shall maintain, or shall cause to be maintained, (i) an office or agency where Securities may be presented for registration of transfer or for exchange (“ Registrar ”), (ii) an office or agency where Securities may be presented for payment (“ Paying Agent ”) and (iii) an office or agency where Securities may be presented for conversion (“ Conversion Agent ”).  The Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company may appoint or change one or more co-Registrars, one or more additional paying agents and one or more additional conversion agents without notice and may act in any such capacity on its own behalf.  The term “ Registrar ” includes any co-Registrar; the term “ Paying Agent ” includes any additional paying agent; and the term “ Conversion Agent ” includes any additional conversion agent.

 

The Company shall enter into an appropriate agency agreement with any agent not a party to this Indenture.  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 agent not a party to this Indenture.  If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such.

 

The Company initially appoints DTC to act as Depositary with respect to the Global Securities.

 

The Company initially appoints the Trustee as Paying Agent, Bid Solicitation Agent, Registrar and Conversion Agent.

 

Section 2.06.                  Restrictions on Transfer .

 

Every Security (and all securities issued in exchange therefor or in substitution thereof) that bears or is required under this Section 2.06 to bear the legend set forth in this Section 2.06 (the “ Restricted Securities Legend ”), and any Common Stock that bears or is required under this Section 2.06 to bear the Common Stock legend set forth in this Section 2.06 (the “ Common Stock Legend ”) (collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.06 (including those set forth in the legends below) unless such restrictions on transfer shall be waived by written consent of the Company, with written notice thereof to the Trustee, and the Holder of each such Restricted Security, by such Security Holder’s acceptance thereof, agrees to be bound by all such

 

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restrictions on transfer.  As used in this Section 2.06, the term “ transfer ” means any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security or any interest therein.

 

Until the Maturity Date for the Securities any certificate evidencing a Restricted Security shall bear a legend in substantially the following form, or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO ALEXANDRIA REAL ESTATE EQUITIES, INC. OR A SUBSIDIARY OF ALEXANDRIA REAL ESTATE EQUITIES, INC.; OR (B) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE).

 

Until the expiration of the holding period applicable to sales thereof under Rule 144 under the Securities Act (or any successor provision), any certificate evidencing any stock certificate representing Common Stock issued upon exchange of any Security, shall bear a Common Stock Legend unless such Common Stock has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues to be effective at the time of such transfer) or pursuant to Rule 144 under the Securities Act or any similar provision then in force, or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO ALEXANDRIA REAL ESTATE EQUITIES, INC. OR A SUBSIDIARY OF ALEXANDRIA REAL ESTATE EQUITIES, INC.; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY, FURNISH TO THE TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

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Any such Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms or as to which the conditions for removal of the Common Stock Legend set forth therein have been satisfied may, upon surrender of the certificates representing such 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 number of Common Stock, which shall not bear the Common Stock Legend required by this Section 2.06.

 

(A)          By its acceptance of any Security bearing the Restricted Securities Legend, each Holder of such Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Restricted Securities Legend and agrees that it will transfer such Security only as provided in this Indenture and as permitted by applicable law.

 

(B)           Any Restricted Securities purchased or owned by the Company or any Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction which results in such Securities or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144).

 

(C)           The Trustee shall have no responsibility or obligation to any members of, or participants in, the Depositary (“ Agent Members ”) or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any Agent Members or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities.  All notices and communications to be given to the Securityholders and all payments to be made to Securityholders under the Securities shall be given or made only to or upon the order of the registered Securityholders (which shall be the Depositary or its nominee in the case of a Global Security).  The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the customary procedures of the Depositary.  The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members.

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

Section 2.07.                  Book-Entry Provisions for and Restrictions on Transfer and Exchange of Global Securities .

 

(A)          The Global Securities initially shall (i) be deposited with, on or behalf of, DTC, (ii) be registered in the name of DTC’s nominee, Cede & Co., (iii) be delivered to the Trustee as custodian for DTC, and (iv) bear the following legend, as well as, to the extent applicable, the restricted securities legend set forth in Section 2.06:

 

THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.  THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED

 

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CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE INDENTURE.

 

Members of, or participants in, DTC (“ Participants ”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by DTC, or the Trustee as its custodian, or under the Global Security, and so long as DTC or its nominee, as the case may be, is the registered owner of a Global Security, DTC or its nominee, as the case may be, will be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever, and the beneficial owners of the Securities will be entitled only to those rights and benefits afforded to them in accordance with DTC’s regular operating procedures.  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 DTC or its nominee, as the case may be, or impair, as between DTC and Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

 

(B)           Transfers of Global Securities shall be limited to transfers in whole, but not in part, to DTC, its successors or their respective nominees.  In addition, physical securities shall be transferred to all beneficial owners, as identified by DTC, in exchange for their beneficial interests in Global Securities (the “ Physical Securities ”) only if (i) DTC notifies the Company that DTC is unwilling or unable to continue as depositary for any Global Security (or DTC ceases to be a “clearing agency” registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by the Company within ninety (90) days of such notice or cessation, or (ii) an Event of Default has occurred and is continuing and the Registrar has received a written request from DTC to issue Physical Securities, or (iii) the Company, in its sole discretion, determines at any time that the Securities shall no longer be represented by a Global Security.  In any such instance, an owner of a beneficial interest in a Global Security will be entitled to physical delivery of individual Securities in certificated form of the same series and like tenor, equal in principal amount to such beneficial interest and to have the Securities in certificated form registered in its name.  Securities so issued in certificated form will be issued in denominations of $1,000 or any integral multiple thereof and will be issued in registered form only, without coupons.

 

(C)           In connection with the transfer of a Global Security in its entirety to beneficial owners pursuant to Section 2.07(B) hereof, such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall upon receipt of an Authentication Order from the Company 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 Physical Securities of authorized denominations.

 

(D)          The Holder of any Global Security may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Securities.

 

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(E)           Notwithstanding any other provisions of this Indenture, but except as provided in Section 2.07(B) hereof, a Global Security may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor Depositary or a nominee of such successor Depositary.

 

Section 2.08.                  Ranking .

 

The indebtedness of the Company arising under or in connection with this Indenture and every outstanding Security issued under this Indenture from time to time, including any Additional Securities, constitutes and will constitute a senior unsecured obligation of the Company, ranking equally with other existing and future senior unsecured indebtedness of the Company and ranking senior to any existing or future subordinated indebtedness of the Company.

 

Section 2.09.                  Mutilated, Destroyed, Lost and Stolen Securities .

 

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee, upon receipt of an Authentication Order, shall authenticate and deliver in exchange therefor, at the expense of the Holder, a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee, upon receipt of an Authentication Order, shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, at the expense of the Holder, a new Security of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

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 such Security.

 

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

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 2.10.                  [ RESERVED ].

 

Section 2.11.                  Cancellation of Securities .

 

All Securities surrendered for the purpose of payment, redemption, repurchase, exchange or registration of transfer shall, if surrendered to the Company or any Paying Agent, which shall initially be

 

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the Trustee, or any Registrar, be surrendered to the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall be promptly canceled by it and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture.  The Trustee shall dispose of such canceled Securities in accordance with its customary procedures.  If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.

 

Section 2.12.                  CUSIP Numbers .

 

The Company in issuing the Securities may use “ CUSIP ” numbers (if then generally in use), and, if so, the Trustee shall use “ CUSIP ” numbers in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.  The Company will promptly notify the Trustee of any change in the “ CUSIP ” numbers.

 

ARTICLE III

 

REDEMPTION AND REPURCHASE

 

Section 3.01.                  Redemption and Repurchase .

 

(A)          (i) Redemption of the Securities at the Company’s option, as permitted by this Indenture, shall be made in accordance with paragraphs 6 and 7 of the Securities (a “ Redemption ”), (ii) repurchases at the Holder’s option, as permitted by this Indenture, shall be made in accordance with paragraph 8 of the Securities (a “ Repurchase at Holder’s Option ”) and (iii) repurchases upon a Fundamental Change, as permitted by this Indenture, shall be made in accordance with paragraph 9 of the Securities (a “ Repurchase Upon Fundamental Change ”), in each case in accordance with the applicable provisions of this Article III.

 

(B)           The Company will comply with all federal and state securities laws, and the applicable laws of any foreign jurisdiction, in connection with any offer to sell or solicitations of offers to buy Securities pursuant to this Article III.

 

(C)           The Company shall not have the right to redeem any Securities prior to April 20, 2014, except to preserve the Company’s qualification as a real estate investment trust.  If, at any time, the Company determines that it is necessary to redeem the Securities in order to preserve the Company’s qualification as a real estate investment trust, the Company may redeem all or any part of the Securities at a Redemption Price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.  In such case, the Company shall provide the Trustee with an Officers’ Certificate evidencing that the Board of the Company has, in good faith, made the determination that it is necessary to redeem the Securities in order to preserve the Company’s qualification as a real estate investment trust, on which the Trustee may conclusively rely.

 

The Company shall have the right, at the Company’s option, at any time, and from time to time, on a Redemption Date on or after April 20, 2014, to redeem all or any part of the Securities at a price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.  In no event shall any Redemption Date be a legal holiday; provided further , that if

 

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the Redemption Date with respect to a Security is after a Record Date for the payment of an installment of interest and on or before the related interest payment date, then accrued and unpaid interest to, but excluding, such interest payment date shall be paid, on such interest payment date, to the Holder of record of such Security at the close of business on such Record Date, and the Redemption Price shall not include any accrued or unpaid interest.

 

(D)          Securities in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

 

Section 3.02.                  Notices to Trustee .

 

If the Company elects to redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the Trustee of the Redemption Date, the applicable provision of this Indenture pursuant to which the Redemption is to be made and the aggregate principal amount of Securities to be redeemed, which notice shall be provided to the Trustee by the Company at least fifteen (15) days prior to the mailing, in accordance with Section 3.04 hereof, of the notice of Redemption (unless a shorter notice period shall be satisfactory to the Trustee).

 

Section 3.03.                  Selection of Securities to Be Redeemed .

 

If the Company has elected to redeem less than all the Securities pursuant to paragraph 6 of the Securities, the Trustee shall, promptly after receiving the notice specified in Section 3.02 hereof, select the Securities to be redeemed by lot, on a pro rata basis or in accordance with any other method the Trustee considers fair and appropriate.  The Trustee shall make such selection from Securities then outstanding and not already to be redeemed by virtue of having been previously called for Redemption.  The Trustee may select for Redemption portions of the principal amount of Securities that have denominations larger than $1,000 principal amount.  Securities and portions of them the Trustee selects for Redemption shall be in amounts of $1,000 principal amount or integral multiples of $1,000 principal amount.  The Trustee shall promptly notify the Company in writing of the Securities selected for Redemption and the principal amount thereof to be redeemed.

 

The Registrar need not register the transfer of or exchange any Securities that have been selected for Redemption, except the unredeemed portion of the Securities being redeemed in part.

 

Section 3.04.                  Notice of Redemption .

 

At least thirty (30) days but not more than sixty (60) days before a Redemption Date, the Company shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each Holder whose Securities are to be redeemed, at the address of such Holder appearing in the register of the Registrar.  The notice shall identify the Securities and the aggregate principal amount thereof to be redeemed pursuant to the Redemption and shall state:

 

(i)            the Redemption Date;

 

(ii)           the Redemption Price plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date;

 

(iii)          the Conversion Rate and the Conversion Price;

 

(iv)          the names and addresses of the Paying Agent and the Conversion Agent;

 

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(v)           that the right to convert the Securities called for Redemption will terminate at the close of business on the last Business Day immediately preceding the Redemption Date, unless there shall be a Default in the payment of the Redemption Price or accrued and unpaid interest, if any, payable as herein provided upon Redemption;

 

(vi)          that Holders who want to convert Securities must satisfy the requirements of Article X hereof;

 

(vii)         the paragraph of the Securities pursuant to which the Securities are to be redeemed;

 

(viii)        that Securities called for Redemption must be surrendered to the Paying Agent to collect the Redemption Price plus accrued and unpaid interest, if any, payable as herein provided upon Redemption;

 

(ix)           that, unless there shall be a Default in the payment of the Redemption Price or accrued and unpaid interest, if any, payable as herein provided upon Redemption (including, where the Redemption Date is after a Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, the payment, on such Interest Payment Date, of accrued and unpaid interest to, but excluding, such Interest Payment Date to the Holder of record at the close of business on such Record Date), interest on Securities called for Redemption ceases to accrue on and after the Redemption Date, except as otherwise provided herein, such Securities will cease to be convertible after the close of business on the last Business Day immediately preceding the Redemption Date, and all rights of the Holders of such Securities shall terminate on and after the Redemption Date, other than the right to receive, upon surrender of such Securities and in accordance with this Indenture, the amounts due hereunder on such Securities upon Redemption (and the rights of the Holder(s) of record of such Securities to receive, on the applicable Interest Payment Date, accrued and unpaid interest in accordance herewith in the event the Redemption Date is after a Record Date for the payment of an installment of interest and on or before the related Interest Payment Date); and

 

(x)            the CUSIP number or numbers, as the case may be, of the Securities.

 

The right, pursuant to Article X hereof, to convert Securities called for Redemption shall terminate at the close of business on the last Business Day immediately preceding the Redemption Date, unless there shall be a Default in the payment of the Redemption Price or accrued and unpaid interest, if any, payable as herein provided upon Redemption.

 

At the Company’s request, the Trustee shall mail the notice of Redemption in the Company’s name and at the Company’s expense; provided , however , that the form and content of such notice shall be prepared by the Company.

 

Section 3.05.                  Effect of Notice of Redemption .

 

Once notice of Redemption is mailed, Securities called for Redemption become due and payable on the Redemption Date at the consideration set forth herein, and, on and after such Redemption Date (unless there shall be a Default in the payment of such consideration), except as otherwise provided herein, such Securities shall cease to bear interest, and all rights of the Holders of such Securities shall terminate, other than the right to receive such consideration upon surrender of such Securities to the Paying Agent.

 

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If any Security shall not be fully and duly paid in accordance herewith upon Redemption, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X hereof.

 

Notwithstanding anything herein to the contrary, the Company shall not redeem any Securities on any date if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded on or prior to Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Redemption Price with respect to such Securities).

 

Section 3.06.                  Deposit of Redemption Price .

 

Prior to 11:00 A.M., New York City time on the Redemption Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) money, in funds immediately available on the Redemption Date, sufficient to pay the consideration payable as herein provided upon Redemption on all Securities to be redeemed on that date.  The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

 

Section 3.07.                  Payment of Securities Called for Redemption by the Company .

 

If notice of redemption has been given as provided in Section 3.02, the Securities or portion of Securities with respect to which such notice has been given shall, unless exchanged pursuant to the terms hereof, become due and payable on the Redemption Date and at the place or places stated in such notice at the Redemption Price, and unless the Company shall default in the payment of the Redemption Price, interest on the Securities or portion of Securities so called for redemption shall cease to accrue on and after the Redemption Date and, after 5:00 p.m., New York City time, on the last Business Day immediately preceding the Redemption Date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to be convertible pursuant to this Indenture and, except as provided in Section 4.03, to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the Redemption Price thereof.  On presentation and surrender of such Securities at a place of payment specified in said notice, the said Securities or the specified portions thereof shall be paid and redeemed by the Company at the Redemption Price, together with interest accrued thereon to, but excluding, the Redemption Date.

 

Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate and make available for delivery to the Holder thereof, at the expense of the Company, a new Security or Securities, of authorized denominations, in principal amount equal to the unredeemed portion of the Securities so presented.

 

Section 3.08.                  Securities Redeemed in Part .

 

Any Security to be submitted for Redemption only in part shall be delivered pursuant to Section 3.04 hereof (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall, upon receipt of an Authentication Order, authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not submitted for Redemption.

 

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If any Security selected for partial Redemption is converted in part, the principal of such Security subject to Redemption shall be reduced by the principal amount of such Security that is converted.

 

Section 3.09.                  Repurchase of Securities at Option of the Holder .

 

(A)          At the option of the Holder thereof, Securities (or portions thereof that are integral multiples of $1,000 in principal amount) shall be purchased by the Company pursuant to paragraph 8 of the Securities on each of April 15, 2014, April 15, 2019 and April 15, 2024 (each, an “ Option Repurchase Date ”), at a purchase price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities (or such portions thereof) to be so purchased (the “ Option Repurchase Price ”), plus accrued and unpaid interest, if any, to, but excluding, the applicable Option Repurchase Date ( provided , that such accrued and unpaid interest shall be paid to the Holder of record of such Securities at the close of business on the Record Date immediately preceding such Option Repurchase Date), upon:

 

(i)            delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Option Repurchase Notice, by such Holder, at any time from the opening of business on the date that is twenty (20) Business Days prior to the applicable Option Repurchase Date until the close of business on the Business Day immediately preceding the applicable Option Repurchase Date, of a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:

 

(a)           the certificate number(s) of the Securities which the Holder will deliver to be purchased, if such Securities are in certificated form;

 

(b)           the principal amount of Securities to be purchased, which must be $1,000 or an integral multiple thereof; and

 

(c)           that such principal amount of Securities are to be purchased by the Company as of the applicable Option Repurchase Date pursuant to the terms and conditions specified in paragraph 8 of the Securities and in this Indenture; and

 

(ii)           delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Option Repurchase Notice, at any time after delivery of such Purchase Notice, of such Securities (together with all necessary endorsements), such delivery being a condition to receipt by the Holder of the Option Repurchase Price therefor plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder’s Option ( provided , however , that the Holder of record of such Securities on the record date immediately preceding such Option Repurchase Date need not surrender such Securities in order to be entitled to receive, on the Option Repurchase Date, the accrued and unpaid interest due thereon).

 

If such Securities are held in book-entry form through DTC, the Purchase Notice shall comply with applicable procedures of DTC.

 

Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery.

 

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Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section 3.09(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Option Repurchase Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the applicable Option Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.09(B)(vii) hereof.

 

The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.

 

(B)           The Company shall give notice (the “ Option Repurchase Notice ”) on a date not less than twenty (20) Business Days prior to each Option Repurchase Date to each Holder at its address shown in the register of the Registrar and to each beneficial owner as required by applicable law.  Such notice shall state:

 

(i)            the Option Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, such Option Repurchase Date and the Conversion Rate;

 

(ii)           the names and addresses of the Paying Agent and the Conversion Agent;

 

(iii)          that Securities with respect to which a Purchase Notice is given by a Holder may be converted pursuant to Article X hereof only if such Purchase Notice has been withdrawn in accordance with this Section 3.09 or if there shall be a Default in the payment of such Option Repurchase Price or in accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder’s Option;

 

(iv)          that Securities must be surrendered to the Paying Agent to collect payment of the Option Repurchase Price plus (if such Holder was the Holder of record of the applicable Security at the close of business on the record date immediately preceding the Option Repurchase Date) accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder’s Option;

 

(v)           that the Option Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, such Option Repurchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event later than the later of such Option Repurchase Date or the time of delivery of the Security as described in clause (iv) above; provided , however , that such accrued and unpaid interest shall be paid, on the applicable interest payment date, to the Holder of record of such Security at the close of business on the record date immediately preceding such Option Repurchase Date;

 

(vi)          the procedures the Holder must follow to exercise rights under this Section 3.09 (including the name and address of the Paying Agent) and a brief description of those rights;

 

(vii)         that a Holder will be entitled to withdraw its election in the Purchase Notice if the Company (if acting as its own Paying Agent) or the Paying Agent receives, at any time prior to the close of business on the Business Day immediately preceding the applicable Option Repurchase Date, or such longer period as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its

 

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election to have Securities purchased by the Company on such Option Repurchase Date pursuant to a Repurchase at Holder’s Option, (III) the certificate number(s) of such Securities to be so withdrawn, if such Securities are in certificated form, (IV) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the principal amount, if any, of the Securities of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.09, which amount must be $1,000 or an integral multiple thereof;

 

(viii)        that, except as otherwise provided herein, on and after the applicable Option Repurchase Date (unless there shall be a Default in the payment of the consideration payable as herein provided upon a Repurchase at Holder’s Option), interest on Securities subject to Repurchase at Holder’s Option will cease to accrue, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance herewith, the consideration payable as herein provided upon a Repurchase at Holder’s Option; and

 

(ix)           the CUSIP number or numbers, as the case may be, of the Securities.  At the Company’s request, the Trustee shall mail such Option Repurchase Notice in the Company’s name and at the Company’s expense; provided , however , that the form and content of such Option Repurchase Notice shall be prepared by the Company.

 

No failure of the Company to give an Option Repurchase Notice shall limit any Holder’s right to exercise its rights to require the Company to purchase such Holder’s Securities pursuant to a Repurchase at Holder’s Option.

 

(C)           Subject to the provisions of this Section 3.09, the Company shall pay, or cause to be paid, the Option Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the applicable Option Repurchase Date, with respect to each Security subject to Repurchase at Holder’s Option to the Holder thereof as promptly as practicable, but in no event later than the later of the applicable Option Repurchase Date and the time such Security (together with all necessary endorsements) is surrendered to the Paying Agent; provided , however , that such accrued and unpaid interest shall only be paid, on the applicable Interest Payment Date, to the Holder of record of such Security at the close of business on the Record Date immediately preceding such Option Repurchase Date.

 

(D)          Prior to 11:00 A.M., New York City time on the applicable Option Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) money, in funds immediately available on the applicable Option Repurchase Date, sufficient to pay the Option Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, such Option Repurchase Date, of all of the Securities that are to be purchased by the Company on such Option Repurchase Date pursuant to a Repurchase at Holder’s Option.  The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

 

(E)           Once the Purchase Notice has been duly delivered in accordance with this Section 3.09, the Option Repurchase Price, plus accrued and unpaid interest, if any, relating to the Securities to be purchased pursuant to the Repurchase at Holder’s Option shall, on the applicable Option Repurchase Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment of the consideration payable as herein provided upon a Repurchase at Holder’s Option), except as otherwise herein provided, such Securities shall cease to bear interest, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance herewith, the such consideration.

 

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(F)           Securities with respect to which a Purchase Notice has been duly delivered in accordance with this Section 3.09 may be converted pursuant to Article X hereof, if otherwise convertible in accordance with Article X hereof, only if such Purchase Notice has been withdrawn in accordance with this Section 3.09 or if there shall be a Default in the payment of the consideration payable as herein provided upon a Repurchase at Holder’s Option.

 

(G)           If the Option Repurchase Price, plus accrued and unpaid interest (to the extent specified in clause (C) above) with respect to any Security subject to Repurchase at Holder’s Option shall not be paid in accordance herewith, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest, payable in cash, at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X hereof.

 

(H)          Any Security which is to be submitted for Repurchase at Holder’s Option only in part shall be delivered pursuant to this Section 3.09 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall, upon receipt of an Authentication Order, authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not submitted for Repurchase at Holder’s Option.

 

(I)            Notwithstanding anything herein to the contrary, no Securities shall be purchased by the Company at the option of the Holders on any Option Repurchase Date if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to such Option Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Option Repurchase Price with respect to such Securities).  The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of such acceleration.

 

(J)            Notwithstanding anything herein to the contrary, if the option granted to Holders to require the purchase of the Securities on the applicable Option Repurchase Date is determined to constitute a tender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

 

Section 3.10.                  [ RESERVED ].

 

Section 3.11.                  Repurchase at Option of Holder Upon a Fundamental Change .

 

(A)          In the event any Fundamental Change (as defined below) shall occur, each Holder of Securities shall have the right (the “ Fundamental Change Repurchase Right ”), at such Holder’s option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the “ Fundamental Change Repurchase Date ”), which Fundamental Change Repurchase Date shall be no later than thirty-five (35) days, nor earlier than twenty (20) days, after the date the Fundamental Change Notice (as defined below) is mailed in accordance with Section 3.11(B) hereof, at a price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Securities (or portions thereof) to be so repurchased (the “ Fundamental Change Repurchase Price ”), plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, upon:

 

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(i)            delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice, no later than the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:

 

(a)           the certificate number(s) of the Securities which the Holder will deliver to be repurchased, if such Securities are in certificated form;

 

(b)           the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and

 

(c)           that such principal amount of Securities are to be repurchased pursuant to the terms and conditions specified in paragraph 9 of the Securities and in this Indenture; and

 

(ii)           delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice, at any time after the delivery of such Purchase Notice, of such Securities (together with all necessary endorsements) with respect to which the Fundamental Change Repurchase Right is being exercised;

 

provided , however , that if such Fundamental Change Repurchase Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then the accrued and unpaid interest, if any, to, but excluding, such interest payment date will be paid on such interest payment date to the Holder of record of such Securities at the close of business on such record date (without any surrender of such Securities by such Holder), and the Holder surrendering such Securities for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Securities at the close of business on such record date.

 

If such Securities are held in book-entry form through DTC, the Purchase Notice shall comply with applicable procedures of DTC.

 

Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive from the Company or such Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery.

 

Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section 3.11(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Fundamental Change Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in Section 3.11(B)(xi) hereof.

 

The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.

 

(B)           Within twenty (20) Business Days after the occurrence of a Fundamental Change, the Company shall mail, or cause to be mailed, to all Holders of record of the Securities at their

 

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addresses shown in the register of the Registrar, and to beneficial owners as required by applicable law, a notice (the “ Fundamental Change Notice ”) of the occurrence of such Fundamental Change and the Fundamental Change Repurchase Right arising as a result thereof.  The Company shall deliver a copy of the Fundamental Change Notice to the Trustee and shall cause a copy to be published at the expense of the Company in The New York Times or The Wall Street Journal or another newspaper of national circulation.

 

Each Fundamental Change Notice shall state:

 

(i)            the events causing the Fundamental Change;

 

(ii)           the date of such Fundamental Change;

 

(iii)          the Fundamental Change Repurchase Date;

 

(iv)          the last date by which the Fundamental Change Repurchase Right must be exercised;

 

(v)           the Fundamental Change Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date;

 

(vi)          the names and addresses of the Paying Agent and the Conversion Agent;

 

(vii)         a description of the procedures which a Holder must follow to exercise the Fundamental Change Repurchase Right;

 

(viii)        that, in order to exercise the Fundamental Change Repurchase Right, the Securities must be surrendered for payment of the Fundamental Change Repurchase Price plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Fundamental Change;

 

(ix)           that the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, for any Security as to which a Purchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event more than the later of such Fundamental Change Repurchase Date and the time of delivery of the Security (together with all necessary endorsements) as described in clause (viii) above; provided , however , that if such Fundamental Change Repurchase Date is after a record date for the payment of an installment of interest and on or before the related interest payment date, then the accrued and unpaid interest, if any, to, but excluding, such interest payment date will be paid on such interest payment date to the Holder of record of such Security at the close of business on such record date (without any surrender of such Securities by such Holder), and the Holder surrendering such Security for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Security at the close of business on such record date;

 

(x)            that, except as otherwise provided herein, on and after such Fundamental Change Repurchase Date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change), interest on Securities subject to Repurchase Upon Fundamental Change will cease to accrue, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance herewith, the consideration payable as herein provided upon Repurchase Upon Fundamental Change;

 

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(xi)           that a Holder will be entitled to withdraw its election in the Purchase Notice if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, or such longer period as may be required by law, a letter or telegram, telex or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to have Securities purchased by the Company on such Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the certificate number(s) of such Securities to be so withdrawn, if such Securities are in certificated form, (IV) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the principal amount, if any, of the Securities of such Holder that remain subject to the Purchase Notice delivered by such Holder in accordance with this Section 3.11, which amount must be $1,000 or an integral multiple thereof;

 

(xii)          the Conversion Rate and any adjustments to the Conversion Rate that will result from such Fundamental Change;

 

(xiii)         that Securities with respect to which a Purchase Notice is given by a Holder may be converted pursuant to Article X hereof only if such Purchase Notice has been withdrawn in accordance with this Section 3.11 or if there shall be a Default in the payment of the Fundamental Change Repurchase Price or in the accrued and unpaid interest, if any, payable as herein provided upon Repurchase Upon Fundamental Change; and

 

(xiv)        the CUSIP number or numbers, as the case may be, of the Securities.  At the Company’s request, the Trustee shall mail such Fundamental Change Notice in the Company’s name and at the Company’s expense; provided , however , that the form and content of such Fundamental Change Notice shall be prepared by the Company.

 

No failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right to exercise a Fundamental Change Repurchase Right.

 

(C)           Subject to the provisions of this Section 3.11, the Company shall pay, or cause to be paid, the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date, with respect to each Security as to which the Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as promptly as practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the time such Security is surrendered to the Paying Agent; provided , however , that if such Fundamental Change Repurchase Date is after a Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date will be paid on such Interest Payment Date to the Holder of record of such Security at the close of business on such Record Date, and the Holder surrendering such Security for repurchase will not be entitled to any such accrued and unpaid interest unless such Holder was also the Holder of record of such Security at the close of business on such Record Date.

 

(D)          Prior to 11:00 A.M., New York City time on a Fundamental Change Repurchase Date, the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) money, in funds immediately available on the Fundamental Change Repurchase Date, sufficient to pay the consideration payable as herein provided upon Repurchase Upon Fundamental Change for all of the Securities that are to be repurchased by the Company on such

 

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Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change.  The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.

 

(E)           Once the Fundamental Change Notice and the Purchase Notice have been duly given in accordance with this Section 3.11, the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, relating to the Securities to be repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the Fundamental Change Repurchase Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change), except as otherwise herein provided, such Securities shall cease to bear interest, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance herewith, such consideration.

 

(F)           Securities with respect to which a Purchase Notice has been duly delivered in accordance with this Section 3.11 may be converted pursuant to Article X hereof, if otherwise convertible in accordance with Article X hereof, only if such Purchase Notice has been withdrawn in accordance with this Section 3.11 or if there shall be a Default in the payment of the consideration payable as herein provided upon Repurchase Upon Fundamental Change.

 

(G)           If the Fundamental Change Repurchase Price, plus accrued and unpaid interest (to the extent provided in clause (C) above) with respect to any Security shall not be paid upon surrender thereof for Repurchase Upon Fundamental Change, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest, payable in cash, at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to Article X hereof.

 

(H)          Any Security which is to be submitted for Repurchase Upon Fundamental Change only in part shall be delivered pursuant to this Section 3.11 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee upon receipt of an Authentication Order shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not duly submitted for Repurchase Upon Fundamental Change.

 

(I)            Notwithstanding anything herein to the contrary, no Securities shall be repurchased by the Company at the option of the Holders upon a Fundamental Change pursuant to this Section 3.11 if the principal amount of the Securities has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Securities).  The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of such acceleration.

 

(J)            Notwithstanding anything herein to the contrary, if the option granted to Holders to require the repurchase of the Securities upon the occurrence of a Fundamental Change is determined to constitute a tender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the Exchange Act or any other applicable laws.

 

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(K)          As used herein and in the Securities, a “ Fundamental Change ” shall be deemed to have occurred upon the occurrence of either a “ Change in Control ” or a “ Termination of Trading .”

 

(i)            A “ Change in Control ” shall be deemed to have occurred at such time as:

 

(a)           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 such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the total outstanding voting power of all classes of Common Stock entitled to vote generally in the election of directors (“ Voting Stock ”); or

 

(b)           there occurs a sale, transfer, lease, conveyance or other disposition of all or substantially all of the property or assets of the Company or the Guarantor to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (such an event, an “ Asset Sale Control Change ”); or

 

(c)           the Company consolidates with, or merges with or into, another person or any person consolidates with, or merges with or into, the Company, unless either:

 

(1)           the persons that “beneficially owned” (as such term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, the shares of the Voting Stock immediately prior to such consolidation or merger, “beneficially own,” directly or indirectly, immediately after such consolidation or merger, shares of the surviving or continuing corporation’s Voting Stock representing at least a majority of the total outstanding voting power of all outstanding classes of the Voting Stock of the surviving or continuing corporation in substantially the same proportion as such ownership immediately prior to such consolidation or merger; or

 

(2)           at least ninety percent (90%) of the consideration (other than cash payments for fractional shares or cash payments pursuant to statutory appraisal rights) in such consolidation or merger consists of common stock and any associated rights traded on a U.S. national securities exchange (or which will be so traded when issued or exchanged in connection with such consolidation or merger), and, as a result of such consolidation or merger, the Securities, will be convertible into such common stock and associated rights (such a consolidation or merger that satisfies the conditions set forth in this clause (2), a “ Listed Stock Business Combination ”); or

 

(d)           the following persons cease for any reason to constitute a majority of the Company’s Board:

 

(1)           individuals who on the Issue Date constituted the Company’s Board; and

 

(2)           any new directors whose election to the Company’s Board or whose nomination for election by the Company’s stockholders was approved by at least a majority of the directors of the Company then still in office

 

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either who were directors of the Company on the Issue Date or whose election or nomination for election was previously so approved; or

 

(e)           the Company is liquidated or dissolved or the holders of the Company’s Capital Stock approve any plan or proposal for the liquidation or dissolution of the Company.

 

(ii)           A “ Termination of Trading ” shall be deemed to occur if the Common Stock (or other common stock into which the Securities are then convertible) is no longer listed for trading on a U.S. national securities exchange.

 

ARTICLE IV

COVENANTS

 

Section 4.01.                  Payment of Principal, Interest and Additional Interest .

 

The Company covenants and agrees for the benefit of each of the Securities that it will duly and punctually pay the principal of, interest on and any Additional Interest on those Securities in accordance with the terms of the Securities and this Indenture.

 

Section 4.02.                  Maintenance of Office or Agency .

 

The Company will maintain in each place of payment for any Securities an office or agency where those Securities may be presented or surrendered for payment, where those Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind 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 each place of payment for the Securities for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

Section 4.03.                  Money for Securities Payments to be Held in Trust .

 

If the Company shall at any time act as its own Paying Agent with respect to any Securities, it will, on or before each due date of the principal of, interest on or any Additional Interest on any of those Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, interest or any Additional Interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Company shall have one or more Paying Agents for any Securities, it will, prior to each due date of principal of, interest on or any Additional Interest on any of those Securities, deposit

 

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with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

The Company will cause each Paying Agent (other than the Trustee) for any Securities to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon those Securities) in the making of any payment in respect of the Securities, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of those Securities.

 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of principal of, interest on or any Additional Interest on any Security and remaining unclaimed for two years after such principal, interest or Additional Interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be mailed to each Holder or published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 4.04.                  [ RESERVED ].

 

Section 4.05.                  Statement by Officers as to Default .

 

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, 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 qualification thereof of which they may have knowledge.  The Company will also deliver to the Trustee, promptly after an officer of the Company becomes aware of the occurrence of any Event of Default, an Officers’ Certificate setting forth the nature and status of such Event of Default and, if then formulated, the action that the Company proposes to take with respect thereto.

 

Section 4.06.                  Rule 144A Information Requirement .

 

If so required by Rule 144A the Company will promptly furnish to the Holders, beneficial owners and prospective purchasers of the Securities and of any Common Stock delivered upon exchange of the

 

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Securities, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) to facilitate the resale of the Securities and the Common Stock pursuant to Rule 144A.

 

Section 4.07.                  SEC Report and Report to Trustee .

 

The Company shall deliver to the Trustee, no later than the time such report is required to be filed with the Commission pursuant to the Exchange Act (including, without limitation, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), a copy of each report the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; provided , however , that the Company shall not be required to deliver to the Trustee any material for which the Company has sought and received confidential treatment by the Commission; and provided further , each such report will be deemed to be so delivered to the Trustee if the Company files such report with the Commission through the Commission’s EDGAR database no later than the time such report is required to be filed with the Commission pursuant to the Exchange Act (including, without limitation, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act).  In the event the Company is at any time no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company shall continue to provide the Trustee and, upon request, any Holder, within the time period that the Company would have been required to file such reports with the Commission (including, without limitation, to the extent applicable, any extension permitted by Rule 12b-25 under the Exchange Act), annual and quarterly consolidated financial statements substantially equivalent to financial statements that would have been included in reports filed with the Commission if the Company were subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, including, with respect to annual information only, a report thereon by the Company’s certified independent public accountants as such would be required in such reports filed with the Commission and, in each case, together with a management’s discussion and analysis of financial condition and results of operations which would be so required.  The Company also shall comply with the other provisions of Trust Indenture Act § 314(a).  Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt thereof 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 exclusively on an Officers’ Certificate).

 

In addition, the Company shall regularly furnish to the Trustee copies of its annual report to stockholders, containing audited financial statements, and any other financial reports which the Company furnish to its stockholders.

 

Section 4.08.                  Corporate Existence .

 

Subject to Section 7.01 hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate existence of each of its Subsidiaries, in accordance with the respective organizational documents of the Company and of each Subsidiary, and the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided , however , that the Company shall not be required to preserve any such right, license or franchise, or the corporate existence of any Subsidiary, if in the good faith judgment of the executive management of the Company (i) such preservation or existence is not material to the conduct of business of the Company and (ii) the loss of such right, license or franchise or the dissolution of such Subsidiary does not have a material adverse impact on the Holders.

 

Section 4.09.                  Additional Interest Notice .

 

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In the event that the Company is required to pay Additional Interest to Holders of Securities, the Company will provide written notice (“ Additional Interest Notice ”) to the Trustee of its obligation to pay Additional Interest no later than ten (10) calendar days prior to the proposed Interest Payment Date for Additional Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such Interest Payment Date.  The Trustee shall not at any time be under any duty or responsibility to any Holder of Securities to determine the Additional Interest, or with respect to the nature, extent or calculation of the amount of Additional Interest when made, or with respect to the method employed in such calculation of the Additional Interest.

 

Section 4.10.                  [ RESERVED ].

 

Section 4.11.                  Further Instruments and Acts .

 

Upon request of the Trustee, the Company shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

 

ARTICLE V

 

DEFAULTS AND REMEDIES

 

Section 5.01.                  Events of Default .

 

An “ Event of Default ” occurs if:

 

(i)            the Company fails to pay the principal of, or Additional Interest, if any, on, any Security when the same becomes due and payable, whether at maturity, upon Redemption, on an Option Repurchase Date with respect to a Repurchase at Holder’s Option, on a Fundamental Change Repurchase Date with respect to a Repurchase Upon Fundamental Change or otherwise;

 

(ii)           the Company fails to pay an installment of interest on any Security when due, if such failure continues for thirty (30) days after the date when due;

 

(iii)          the Company fails to satisfy its conversion obligations upon exercise of a Holder’s conversion rights pursuant hereto;

 

(iv)          the Company fails to timely provide a Fundamental Change Notice or an Option Repurchase Notice, as required by the provisions of this Indenture, or fails to timely provide any notice pursuant to, and in accordance with, Section 10.15(D) hereof;

 

(v)           the Company fails to comply with any other term, covenant or agreement set forth in the Securities, this Indenture or the Guaranty if the failure is not cured within sixty (60) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding in accordance with this Indenture;

 

(vi)          the Company, the Guarantor or any of the Company’s Subsidiaries defaults in the payment when due, after the expiration of any applicable grace period, of principal of or interest on Indebtedness for money borrowed, in the aggregate principal amount then outstanding of fifty million dollars ($50,000,000) or more, which default results in the acceleration of Indebtedness of the Company, the Guarantor or any of the Company’s other Subsidiaries for money borrowed in such aggregate

 

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principal amount or more so that it becomes due and payable prior to the date on which it would otherwise become due and payable and such default is not cured or waived, or such acceleration is not rescinded, within ten (10) days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding, each in accordance with this Indenture;

 

(vii)         the Company, the Guarantor or any of the Company’s other Subsidiaries fails, within thirty (30) days, to pay, bond or otherwise discharge any final, non-appealable judgments or orders for the payment of money the total uninsured amount of which for the Company or any of its Subsidiaries exceeds fifty million dollars ($50,000,000), which are not stayed on appeal;

 

(viii)        the Company, the Guarantor or any of their Significant Subsidiaries, pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law, or other similar law now or hereafter in effect or otherwise, either:

 

(A)          commences a voluntary case,

 

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

 

(C)           consents to the appointment of a Custodian of it or for all or substantially all of its property, or

 

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

 

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

 

(A)          is for relief against the Company or any of its Significant Subsidiaries in an involuntary case or proceeding, or adjudicates the Company or any of its Significant Subsidiaries insolvent or bankrupt,

 

(B)           appoints a Custodian of the Company or any of its Significant Subsidiaries for all or substantially all of the property of the Company or any such Significant Subsidiary, as the case may be, or

 

(C)           orders the winding up or liquidation of the Company or any of its Significant Subsidiaries, and, in the case of each of clauses (A), (B) and (C) of this Section 5.01(ix), the order or decree remains unstayed and in effect for at least sixty (60) consecutive days.

 

(x)            the Guaranty ceases to be in full force and effect (other than in accordance with the terms of the Guaranty and this Indenture) or is declared null and void and unenforceable or found to be invalid or the Guarantor denies its liability under the Guarantee (other than by reason of release of the Guarantor from the Guaranty in accordance with the terms of this Indenture and the Guarantee).

 

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

 

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For the avoidance of doubt, a Default under clause (v) above is not an Event of Default until (I) the Trustee notifies the Company in writing, or the Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee in writing, of the Default and (II) the Default is not cured within sixty (60) days after receipt of such notice.  Such notice must specify the Default, demand that it be remedied and state that the notice is a “ Notice of Default .”  If the Holders of at least twenty five percent (25%) in aggregate principal amount of the outstanding Securities request the Trustee to give such notice on their behalf, the Trustee sh