INDENTURE

EXHIBIT 4.1

INDENTURE

 

Among

 

APOGENT TECHNOLOGIES INC.,

 

THE SUBSIDIARY GUARANTORS PARTIES HERETO

 

and

 

THE BANK OF NEW YORK, as Trustee

 

FLOATING RATE SENIOR CONVERTIBLE

CONTINGENT DEBT SECURITIES (CODES) DUE 2033

 

Dated as of December 17, 2003

 

CROSS-REFERENCE TABLE*

 

 

“n/a” means not applicable.

*	This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.

 

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Table of Contents

 

 

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EXHIBITS

 

 

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INDENTURE, dated as of December 17, 2003, among Apogent Technologies Inc., a Wisconsin corporation, having its principal office at 30 Penahallow Street, Portsmouth, New Hampshire 03801 (the “ Company ”), and the guarantors from time to time parties hereto and described below (collectively, the “ Guarantors ”) and The Bank of New York, a New York banking corporation, as Trustee (the “ Trustee ”), having its principal corporate trust office at 101 Barclay Street, Floor 8 West, New York, New York 10286.

 

RECITALS OF THE COMPANY

 

The Company has duly authorized the creation of an issue of its Floating Rate Senior Convertible Contingent Debt Securities (the “ CODES ”) due 2033, together with the several guarantees forming a part thereof of the Guarantors (the “ Guarantees ” and, together with the CODES, the “ Securities ”) having the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, the Company has duly authorized the execution and delivery of this Indenture.

 

All things necessary to make the Securities, when the Securities are duly executed by the Company and the Guarantors and authenticated and delivered hereunder and duly issued by the Company and the Guarantors, the valid obligations of the Company and the Guarantors, and to make this Indenture a valid and binding agreement of the Company and the Guarantors, in accordance with their and its terms, have been done.

 

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 covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

Section 1.1. Definitions.

 

For all purposes of this Indenture and the Securities, the following terms are defined as follows:

 

“ Act ”, when used with respect to any Holder of a Security, has the meaning specified in Section 14.4(a).

 

“ Additional Amounts ” means the additional amounts that the Company and the Guarantors agree to pay if the Company and the Guarantors default in the registration of any Shelf Registration Statement, as specified in the Registration Rights Agreement.

 

“ Adjusted Spread ” means, with respect to any Reset Transaction, the arithmetic average of the spreads, expressed as a percentage, from 3-month LIBOR quoted by two Reference Dealers as the spread from 3-month LIBOR which should be used in calculating the rate at which the Interest Rate on the CODES should accrue so that the Fair Market Value, expressed in dollars, of a CODES immediately after the later of:

 

(a) the public announcement of the Reset Transaction; or

(b) the public announcement of a change in dividend policy in connection with the Reset Transaction,

 

will equal the average Trading Price of the CODES for the 20 Trading Days preceding the date of public announcement of the Reset Transaction; provided that, in no event will the Interest Rate borne by the CODES (without giving effect to any Contingent Interest) at any time after the first Interest Payment Date be less than the greater of (a) zero and (b) 3-month LIBOR, determined by the Calculation Agent in accordance with the Security attached as Annex A hereto, minus 125 basis points.

 

“ 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 Member ” has the meaning specified in Section 2.8.

 

“ Bankruptcy Law ” means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors.

 

“ Board of Directors ” means either the board of directors of the Company or any committee of that board empowered to act for it with respect to this Indenture.

 

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

 

“ Business Day ” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York.

 

“ Calculation Agent ” means any Person authorized by the Company to perform the calculations required by this Indenture and the Security attached as Annex A hereto. Initially, the Calculation Agent shall be The Bank of New York.

 

“ Capital Stock ” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests (however designated) in equity of such Person, whether now outstanding or issued after the date of this Indenture, including, without limitation, all common stock and preferred stock.

 

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“ Change of Control ” means the occurrence of any of the following after the original issuance of the Securities when any of the following has occurred:

 

(1) the acquisition by any “person”, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, as amended, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchase, merger or other acquisition transactions of shares of the Company’s Capital Stock entitling such person to exercise 50% or more of the total voting power of all shares of the Company’s Capital Stock entitled to vote generally in elections of directors, other than any acquisition by the Company, any of its Subsidiaries or any of its employee benefit plans (except that such person shall be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition);

 

(2) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors; or

 

(3) any consolidation or merger of the Company with or into any other person (which for purposes of this definition has the meaning set forth in Section 13(d)(3) of the Exchange Act), any merger of another person into the Company, or any conveyance, transfer, sale, lease or other disposition of all or substantially all of the properties and assets of the Company to another person, other than, in each case, (x) any transaction (i) that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Capital Stock of the Company and (ii) pursuant to which holders of Capital Stock of the Company immediately prior to such transaction have the entitlement to exercise, directly or indirectly, 50% or more of the total voting power of all shares of Capital Stock entitled to vote generally in the election of directors of the continuing or surviving person immediately after such transaction or (y) any such merger solely for the purpose of changing the jurisdiction of incorporation of the Company and resulting in a reclassification, conversion or exchange of outstanding Common Stock solely into shares of the common stock of the surviving entity;

 

provided, however , that a Change of Control shall not be deemed to have occurred if the Sale Price per share of the Common Stock for any five Trading Days within the period of 10 consecutive Trading Days ending immediately after the later of the Change of Control or the public announcement of the Change of Control, in the case of a Change of Control under clause (1) above, or the period of 10 consecutive Trading Days ending immediately before the Change of Control, in the case of a Change of Control under clause (2) above, shall equal or exceed 110% of the Conversion Price of the CODES in effect on each such Trading Day or at least 90% of the consideration in the transaction or transactions constituting a Change of Control consists of shares of Common Stock traded or to be

 

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traded immediately following such Change of Control on a national securities exchange or the Nasdaq National Market and, as a result of the transaction or transactions, the CODES become convertible solely into such Common Stock (and any rights attached thereto).

 

For the purposes of this definition, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.

 

“ Change of Control Repurchase Date ” has the meaning specified in Section 11.1(b) hereof.

 

“ Change of Control Repurchase Price ” has the meaning specified in Section 11.1(b) hereof.

 

“ Change of Control Repurchase Right ” has the meaning specified in Section 11.1(b) hereof.

 

“ Clearstream ” means Clearstream Banking, société anonyme (or any successor securities clearing agency).

 

“ Closing Date ” means December 17, 2003 or such later date on which the Securities may be delivered pursuant to the Purchase Agreement.

 

“ CODES ” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company”.

 

“ Commission ” means the Securities and Exchange Commission or any successor agency.

 

“ Common Stock ” means any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. However, subject to the provisions of Section 12.2 hereof, shares issuable on conversion of the CODES shall include only shares of the class designated as Common Stock, par value $0.01 per share, of the Company at the date of execution of this Indenture or shares of any class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which are not subject to redemption by the Company, provided that if at any time there shall be more than one such resulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

 

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

 

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“ Company Notice ” has the meaning specified in Section 11.2(a).

 

“ Company Order ” means a written order signed in the name of the Company by any Officer.

 

“ Contingent Interest ” has the meaning specified in Section 2.1(d) hereof.

 

“ Contingent Payment Regulations ” has the meaning specified in Section 9.7 hereof.

 

“ Continuing Directors ” means, as of any date of determination, any member of the Board of Directors of the Company who (i) was a member of the Board of Directors on December 12, 2003 or (ii) was nominated for election or elected to the Board of Directors with the approval of two-thirds of the Continuing Directors who were members of the Board of Directors at the time of a new director’s nomination or election.

 

“ Conversion Agent ” means any Person authorized by the Company to convert CODES in accordance with Article 12. Initially, the Conversion Agent shall be The Bank of New York.

 

“ Conversion Date ” means, with respect to any Holder, the date on which such Holder has satisfied all the requirements to convert its CODES.

 

“ Conversion Price ” means the principal amount of CODES that can be exchanged for one share of Common Stock (initially $33.09), subject to adjustments set forth herein.

 

“ Conversion Rate ” means the number of shares of Common Stock into which each $1,000 principal amount of CODES is convertible, which is initially approximately 30.22, subject to adjustments as set forth herein.

 

“ Conversion Value ” means, on any day, the product of the Sale Price for the Common Stock on such day multiplied by the then-applicable Conversion Rate.

 

“ Corporate Trust Office ” means for purposes of presentation or surrender of CODES for payment, registration, transfer, exchange or conversion or for service of notices or demands upon the Company or for any other purpose of this Indenture, the office of the Trustee located in New York, New York at which at any particular time its corporate trust business shall be administered (which at the date of this Indenture is located at 101 Barclay Street, Floor 8 West, New York, New York 10286).

 

“ corporation ” means any corporation, association, limited liability company, company and business trust.

 

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“ Credit Agreement ” means the bank credit agreement dated as of July 29, 2003, among the Company, the Guarantors and the several lenders parties thereto, as such Credit Agreement is amended, modified or supplemented from time to time in accordance with the terms thereof.

 

“ Current Market Price ” has the meaning set forth in Section 12.3(g).

 

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

 

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

 

“ Defaulted Payment ” has the meaning specified in Section 4.1(b).

 

“ Defaulted Interest ” has the meaning specified in Section 2.17.

 

“ Depositary ” means The Depository Trust Company, its nominees and their respective successors.

 

“ Dividend Yield ” on any security for any period means the dividends paid or proposed to be paid pursuant to an announced dividend policy on such security for such period, divided by, if with respect to dividends paid on such security, the average Trading Price of such security during such period and, if with respect to dividends proposed to be paid on such security, the Trading Price of such security on the effective date of the related Reset Transaction.

 

“ Dollar ” or “ $ ” means a U.S. dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts.

 

“ Euroclear ” means Euroclear Bank. S.A./N.V., as operator of the Euroclear System (or any successor securities clearing agency).

 

“ Event of Default ” has the meaning specified in Section 4.1.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended and the rules and regulations of the Commission thereunder.

 

“ Excluded Subsidiary ” means any Subsidiary of the Company that is not or has ceased to be a guarantor of the Company’s indebtedness under the Credit Agreement and is not a “Borrower” under the Credit Agreement (as defined therein).

 

“Expiration Time” has the meaning specified in Section 12.3(f).

 

“Excess Amount” has the meaning specified in Section 12.3(f).

 

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“ Ex-Dividend Time ” means, with respect to any issuance or distribution on shares of Common Stock, the first date on which the shares of Common Stock trade regular way on the principal securities market on which the shares of Common Stock are then traded without the right to receive such issuance or distribution.

 

“ Fair Market Value ” has the meaning set forth in Section 12.3(g).

 

“ GAAP ” has the meaning set forth in Section 1.3.

 

“ Global Security ” has the meaning specified in Section 2.2.

 

“ Guarantee ” means the obligations of the Guarantors described herein.

 

“ Guarantors ” means (i) each Subsidiary listed as a signatory to this Indenture and (ii) each Person who becomes a Guarantor pursuant to Section 13.5 of this Indenture; provided that , pursuant to Section 13.3 of this Indenture, a Subsidiary shall no longer be deemed a Guarantor if it is no longer a guarantor under the Credit Agreement.

 

“ Holder ”, when used with respect to any Security, including any Global Security, means the Person in whose name the Security is registered in the Register.

 

“ Indenture ” means this instrument as originally executed or 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.

 

“ Initial Purchasers ” means Lehman Brothers Inc., Banc of America Securities LLC, J.P. Morgan Securities Inc., Credit Suisse First Boston LLC, ABN AMRO Rothschild LLC, Fleet Securities, Inc., Scotia Capital (USA) Inc., SunTrust Capital Markets, Inc., The Royal Bank of Scotland plc and HSBC Securities (USA) Inc., as initial purchasers under the Purchase Agreement.

 

“ Institutional Accredited Investor ” means an institution that is an “accredited investor” as that term is defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act.

 

“ Interest ” means, with respect to any CODES, the interest payable on such CODES based upon the applicable Interest Rate.

 

“ Interest Adjustment Date ” shall have the meaning set forth in the Security attached as Annex A hereto.

 

“ Interest Determination Date ” shall have the meaning set forth in the Security attached as Annex A hereto.

 

“ Interest Payment Date ” means each of March 15, June 15, September 15 and December 15, unless any such Interest Payment Date (other than an Interest Payment Date at maturity) would otherwise be a day that is not a Business Day, in which case the Interest Payment Date will be postponed to the next succeeding Business Day (except if

 

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that Business Day falls in the next succeeding calendar month, that Interest Payment Date will be the immediately preceding Business Day). If the maturity date of the CODES is a day that is not a Business Day, all payments to be made on such day will be made on the next succeeding Business Day, with the same force and effect as if made on the maturity date, and no additional interest will be payable as a result of such a delay in payment.

 

“ Interest Rate ” has the meaning specified in Section 2.1(c).

 

“ London banking day ” shall have the meaning set forth in the Security attached as Annex A hereto.

 

“ Maturity ” means the date on which the Outstanding principal amount, Redemption Price or Repurchase Price with respect to such CODES becomes due and payable as therein or herein provided, whether at the Stated Maturity or by acceleration, conversion, call for redemption, exercise of a repurchase right or otherwise.

 

“ Moneyline Telerate Page 3750 ” shall have the meaning set forth in the Security attached as Annex A hereto.

 

“ Nasdaq National Market ” means the National Association of Securities Dealers Automated Quotation National Market or any successor national securities exchange or automated over-the-counter trading market in the United States.

 

“ Non-Electing Share ” has the meaning specified in Section 12.4.

 

“ Obligations ” means any principal, interest accruing on or after the filing of any petition of bankruptcy or for reorganization, whether or not a claim for post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations, additional amounts, guarantees and other liabilities or amounts payable under the documentation governing any indebtedness or in respect thereto.

 

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

 

“ Officers’ Certificate ” means, with respect to the Company, a certificate signed by both (1) the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (2) so long as not the same as the officer signing pursuant to clause (1), the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and delivered to the Trustee.

 

“ Opinion of Counsel ” means a written opinion of counsel, who may be counsel to the Company (and may include directors or employees of the Company) and in form and substance acceptable to the Trustee.

 

“ Optional Repurchase Date ” has the meaning specified in Section 11.1(a) hereof.

 

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“ Optional Repurchase Price ” has the meaning specified in Section 11.1(a) hereof.

 

“ Optional Repurchase Right ” has the meaning specified in Section 11.1(a) hereof.

 

“ Outstanding ”, when used with respect to CODES, means, as of the date of determination, all CODES theretofore authenticated and delivered under this Indenture, except CODES:

 

(1) previously canceled by the Trustee or delivered to the Trustee for cancellation;

 

(2) for the payment or redemption of which money in the necessary amount has been previously deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such CODES; provided, however , that if such CODES are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture; and

 

(3) which have been paid in exchange for or in lieu of other Securities which have been authenticated and delivered pursuant to this Indenture, other than any such Security in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

 

provided, however , that in determining whether the Holders of the requisite principal amount of Outstanding CODES are present at a meeting of Holders of CODES for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, CODES held for the account of the Company or of any of its Affiliates shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee shall be protected in making such a determination or relying upon any such quorum, consent or vote, only CODES which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.

 

“ Paying Agent ” has the meaning specified in Section 2.5.

 

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

 

“ Physical Securities ” means Securities issued in definitive, fully registered form without interest coupons, substantially in the form of Exhibit A hereto, that are not Global Securities.

 

“ Place of Conversion ” means any city in which any Conversion Agent is located.

 

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“ Place of Payment ” means any city in which any Paying Agent is located.

 

“ 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 2.12 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 December 12, 2003, among the Company, the Guarantors and the Initial Purchasers relating to the offering and sale of the Securities.

 

“ QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

“ Record Date ” has the meaning assigned to it in Section 12.3(g).

 

“ Redemption Date ”, when used with respect to any CODES to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

 

“ Redemption Price ”, when used with respect to any CODES to be redeemed, means 100% of the principal amount of the CODES.

 

“ Reference Dealer ” means a dealer engaged in the trading of convertible securities selected by the Company (or its successor) for the purpose for which such dealers are quoted or otherwise to which they are referred herein.

 

“ Reference Period ” has the meaning set forth in Section 12.3(d).

 

“ Register ” has the meaning specified in Section 2.5.

 

“ Registrar ” has the meaning specified in Section 2.5.

 

“ Registration Rights Agreement ” means the Resale Registration Rights Agreement dated as of December 17, 2003 among the Company, the Guarantors and the Initial Purchasers.

 

“ Regular Record Date ” for the Interest (including Contingent Interest) payable on the CODES means March 1, June 1, September 1 and December 1 (whether or not a Business Day), as applicable, next preceding the corresponding Interest Payment Date.

 

“ Repurchase Date ” has the meaning specified in Section 11.1(b) hereof.

 

“ Repurchase Notice ” has the meaning specified in Section 11.2(a) hereof.

 

“ Repurchase Price ” has the meaning specified in Section 11.1(b) hereof.

 

“ Repurchase Right ” has the meaning specified in Section 11.1(b) hereof.

 

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“ Reset Transaction ” means any of (1) a merger, consolidation or statutory share exchange to which the entity that is the issuer of the shares of the common stock into which the CODES are then convertible is a party, (2) a sale of all or substantially all the assets of that entity, (3) a recapitalization of the common stock of that entity or (4) a distribution contemplated by Section 12.3(d), in any case, after the effective date of which transaction or distribution the CODES would be convertible into either:

 

(a) shares of an entity, the common stock of which had a Dividend Yield for the four fiscal quarters of such entity immediately preceding the public announcement of such transaction or distribution that was more than 2.5 percentage points higher than the Dividend Yield on the Common Stock (or other common stock then issuable upon a conversion of the CODES) for the four fiscal quarters preceding the public announcement of such transaction or distribution; or

 

(b) shares of an entity that announces a dividend policy prior to the effective date of such transaction or distribution which policy, if implemented, would result in a Dividend Yield on such entity’s common stock for the next four fiscal quarters that would be more than 2.5 percentage points higher than the Dividend Yield on the Company’s Common Stock (or other common stock then issuable upon conversion of the CODES) for the four fiscal quarters preceding the public announcement of the transaction or distribution.

 

“ Responsible Officer ”, when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, any assistant treasurer, 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 such officer’s knowledge of and familiarity with the particular subject.

 

“ Restricted Securities ” means the Securities defined as such in Section 2.3.

 

“ Restricted Securities Legend ” has the meaning set forth in Section 2.3(a).

 

“ Roll-up Date ” means December 31, 2004 and the last day of any calendar month in which the consolidated net sales or consolidated total assets of the companies which are then Guarantors of the CODES becomes less than 90% of the consolidated net sales or consolidated total assets, as the case may be, of the entities which then guarantee the Company’s obligations, or are subsidiary borrowers, under the Credit Agreement.

 

“ Rule 144 ” means Rule 144 as promulgated under the Securities Act (including any successor rule thereof), as the same may be amended from time to time.

 

“ Rule 144A ” means Rule 144A as promulgated under the Securities Act (including any successor rule thereof), as the same may be amended from time to time.

 

“ Sale Price ” of a security on any date of determination means:

 

(1) the closing sale price (or, if no closing sale price is reported, the last reported sale price) of a security (regular way) on the New York Stock Exchange on that date;

 

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(2) if that security is not listed on the New York Stock Exchange on that date, the closing sale price as reported in the composite transactions for the principal U.S. securities exchange on which that security is listed;

 

(3) if that security is not so listed on a U.S. national or regional securities exchange, the closing sale price as reported by the Nasdaq National Market;

 

(4) if that security is not so reported, the last price quoted by Interactive Data Corporation for that security or, if Interactive Data Corporation is not quoting such price, a similar quotation service selected by the Company; or

 

(5) if that security is not so quoted, the average of the mid-point of the last bid and ask prices for that security from at least two dealers recognized as market-makers for that security.

 

“ Securities ” has the meaning ascribed to it in the first paragraph under the caption “Recitals of the Company”.

 

“ Securities Act ” means the Securities Act of 1933, as amended and the rules and regulations of the Commission thereunder.

 

“ Significant Subsidiary ” has the meaning assigned to it under Rule 405 of the Securities Act.

 

“ Shelf Registration Statement ” means any registration statement to be filed by the Company and the Guarantors covering resales by Holders of the Securities and the Common Stock issuable upon conversion of the CODES, as specified in the Registration Rights Agreement.

 

“ Spin-off ” has the meaning assigned to it in Section 12.3(d).

 

“ Stated Maturity ” has the meaning assigned to it in Section 2.1(b).

 

“ 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.

 

“ 3-month LIBOR ” shall have the meaning set forth in the Security attached as Annex A hereto.

 

“ TIA ” means the Trust Indenture Act of 1939, as amended (15 U.S. Code Section 77aaa-77bbbb), as in effect on the date of this Indenture; provided, however , that in the event the TIA is amended after such date, “TIA” means, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.

 

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“ Trading Day ” means:

 

(1) if the applicable security is listed or admitted for trading on the New York Stock Exchange, a day on which the New York Stock Exchange is open for business;

 

(2) if that security is not listed on the New York Stock Exchange, a day on which trades may be made on the Nasdaq National Market;

 

(3) if that security is not so listed on the New York Stock Exchange and not quoted on the Nasdaq National Market, a day on which the principal U.S. securities exchange on which the securities are listed is open for business; or

 

(4) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or a Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.

 

“ Trading Price ” of a CODES on any date of determination means:

 

(1) the average of the secondary market bid quotations per CODES obtained by the Company or the Conversion Agent for $10,000,000 principal amount of the CODES at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company;

 

(2) if at least three such bids cannot reasonably be obtained by the Company or the Conversion Agent, but two such bids are obtained, then the average of the two bids shall be used;

 

(3) if only one such bid can reasonably be obtained by the Company or the Conversion Agent, this one bid shall be used; or

 

(4) if the Company or the Conversion Agent cannot reasonably obtain at least one bid for $10,000,000 principal amount of the CODES from a nationally recognized securities dealer or in the Company’s reasonable judgment, the bid quotations are not indicative of the secondary market value of the CODES, then the trading price of the CODES will equal (i) the then-applicable Conversion Rate of the CODES multiplied by (ii) the Sale Price of the Company’s Common Stock on such determination date.

 

“ Transfer Agent ” means Equiserve Trust Company (or any successor thereto).

 

“ Trigger Event ” has the meaning specified in Section 12.3(d).

 

“ 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 such successor Trustee.

 

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

 

“ Voting Stock ” means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.

 

Section 1.2. Incorporation by Reference of Trust Indenture Act.

 

Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.

 

The following TIA terms used in this Indenture have the following meanings:

 

“ indenture securities ” means the Securities;

 

“ indenture security holder ” means a Holder;

 

“ indenture to be qualified ” means this Indenture;

 

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

 

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

 

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

 

Section 1.3. Rules of Construction.

 

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

 

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

 

(2) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States prevailing at the time of any relevant computation hereunder (“ GAAP ”);

 

(3) 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;

 

(4) all references to section and article numbers in this Indenture shall refer to sections and articles hereof, unless otherwise specified.

 

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ARTICLE 2

 

THE SECURITIES

 

Section 2.1. Title and Terms.

 

(a) The CODES shall be designated as the “Floating Rate Senior Convertible Contingent Debt Securities due 2033” of the Company. The aggregate principal amount of CODES which may be authenticated and delivered under this Indenture is limited to $300 million (or up to $345 million if the option set forth in Section 2 of the Purchase Agreement is exercised in full), except for CODES authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of other CODES pursuant to Sections 2.7, 2.8, 2.12, 7.5 or 10.7, hereof. The CODES shall be issuable in denominations of $1,000 or integral multiples thereof.

 

(b) The CODES shall mature on December 15, 2033 (the “ Stated Maturity ”).

 

(c) The CODES shall bear Interest from December 17, 2003 until the principal amount thereof is paid or made available for payment, or until such date on which the CODES are converted, redeemed or purchased as provided herein at a per annum rate which will equal 3-month LIBOR, adjusted quarterly by the Calculation Agent in accordance with the Security attached as Annex A hereto, minus a spread of 125 basis points, which spread may be reset upon the occurrence of a Reset Transaction, to, but not including, the effective date of any succeeding Reset Transaction (as adjusted as provided herein and the CODES, the “ Interest Rate ”). The Interest Rate for the initial interest period commencing on the Closing Date shall be 0.0 (zero). Notwithstanding anything to the contrary contained herein or in the form of Security, the Interest Rate will never be less than zero. Interest shall be payable quarterly in arrears on each Interest Payment Date, commencing March 15, 2004, with interest payable in Dollars to Holders in whose names the CODES are registered at the close of business on the preceding Regular Record Date, except as otherwise provided herein and in the CODES.

 

(d) In addition, interest (the “ Contingent Interest ”) will accrue on each CODES during any quarterly interest period commencing with the quarterly interest period beginning December 15, 2009, if the average Trading Prices of a CODES for the five Trading Days ending on the second Trading Day immediately preceding the beginning of the relevant quarterly interest period equals 120% or more of the principal amount of such CODES. The amount of Contingent Interest payable in respect of any quarterly period will equal 0.0625% of the average Trading Price of the CODES over the measuring period triggering the Contingent Interest payment. Upon determination that Holders of CODES will be entitled to receive Contingent Interest during any relevant quarterly interest period, on or prior to the start of the relevant quarterly interest period, the Company shall issue a press release and publish information with respect to any Contingent Interest on its web site. The Company shall pay Contingent Interest, if any, in the same manner as it shall pay Interest pursuant to Section 2.1(c) hereof and the obligations of Holders in respect of the payment of Contingent Interest in connection with the conversion of any CODES will also be the same as described in Section 2.1(f) hereof.

 

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(e) Interest (including Contingent Interest) on the CODES shall be computed on the basis of the actual number of days for which Interest is payable in the relevant interest period, divided by 360. For purposes of determining the Interest Rate, the Trustee may assume that a Reset Transaction has not occurred unless the Trustee has received an Officers’ Certificate stating that a Reset Transaction has occurred and specifying the Adjusted Spread then in effect.

 

(f) Interest (including Contingent Interest) shall be due and payable on a CODES as follows:

 

(1) A registered Holder of any CODES as of the close of business on a Regular Record Date shall be entitled (except as otherwise indicated in this Section 2.1(f)) to receive and shall receive, as the registered Holder as of such Regular Record Date, Interest (including Contingent Interest) on such CODES on the corresponding Interest Payment Date (other than any CODES whose Stated Maturity is prior to such Interest Payment Date).

 

(2) In the event that a CODES becomes subject to redemption pursuant to Article 10 and the Redemption Date occurs after a Regular Record Date, the Person whose CODES become subject to redemption (and only such Person rather than the Holder as of such Regular Record Date) shall be entitled to receive and shall receive accrued and unpaid Interest (including Contingent Interest) from the preceding Interest Payment Date (or such earlier date on which Interest, including Contingent Interest, if any, was last paid) to but not including the Redemption Date on such CODES, even if such Person is not the Holder of such CODES.

 

(3) In the event that a CODES becomes subject to purchase pursuant to Article 11, a Holder of any CODES who exercises a repurchase right with respect to such CODES shall be entitled to receive and shall receive Interest (including Contingent Interest) to but not including the applicable purchase date for such CODES, which amount shall be included in the applicable purchase price thereof.

 

(4) In the event that a CODES is converted pursuant to Article 12, the Holder who converts such CODES on any date other than an Interest Payment Date shall not be entitled to accrued and unpaid Interest (including Contingent Interest) from the preceding Interest Payment Date until the Conversion Date, or otherwise, on such CODES, such amounts being deemed to have been paid by receipt of shares of Common Stock in full rather than canceled, extinguished or forfeited; and, accordingly, a Holder which converts a CODES after a Regular Record Date but prior to the corresponding Interest Payment Date will receive accrued and unpaid Interest (including Contingent Interest) for such period on such Interest Payment Date but will be required to remit to the Company an amount equal to that Interest (including Contingent Interest) at the time such Holder surrenders the CODES for conversion The preceding sentence does not apply, however, to a Holder that converts, after a Regular Record Date for an interest payment date but prior to the corresponding Interest Payment Date, CODES that the Company calls for redemption prior to such conversion on a Redemption Date that is on or prior to the third Business Day after such Interest Payment Date.

 

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(g) Payment of any principal, Redemption Price, Repurchase Price and Interest and Contingent Interest, if any, on, Global Securities shall be payable by the Company to the Depositary in immediately available funds.

 

(h) Payment of any principal on Physical Securities shall be made at the office or agency of the Company maintained for such purpose, initially the Corporate Trust Office of the Trustee. Interest, including Contingent Interest, if any, on Physical Securities will be payable by (i) U.S. Dollar check drawn on a bank in The City of New York mailed to the address of the Person entitled thereto as such address shall appear in the Register, or (ii) upon written application to the Registrar not later than the relevant Regular Record Date by a Holder of a principal amount of Securities in excess of $5,000,000, wire transfer in immediately available funds, which application shall remain in effect until the Holder notifies, in writing, the Registrar to the contrary.

 

(i) The CODES are redeemable at the option of the Company as provided in and subject to Article 10.

 

(j) The CODES shall be purchased by the Company at the option of Holders as provided in and subject to Article 11.

 

(k) The CODES shall be convertible at the option of the Holders as provided in and subject to Article 12.

 

(l) The CODES shall be jointly and severally guaranteed by the Guarantors as provided in Article 13 hereof.

 

Section 2.2. Form of Securities.

 

(a) Except as otherwise provided pursuant to this Section 2.2, the Securities are issuable in fully registered form without coupons, in substantially the form of Exhibit A hereto, with such applicable legends as are provided for in Section 2.3. The Securities are not issuable in bearer form. The terms and provisions contained in the form of Security shall constitute, and are hereby expressly made, a part of this Indenture and to the extent applicable, the Company, and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

(b) The Securities are being offered and sold by the Company pursuant to the Purchase Agreement. Securities offered and sold to QIBs in accordance with Rule 144A as provided in the Purchase Agreement, shall be issued initially in the form of one or more permanent global Securities in fully registered form without interest coupons, substantially in the form of Exhibit A hereto, with the applicable legends as provided in Section 2.3 (each a “ Global Security ” and collectively the “ Global Securities ”). Each Global Security shall be duly executed by the Company and authenticated and delivered by the Trustee, and shall be registered in the name of the Depositary or its nominee and retained by the Trustee, as Custodian, at its Corporate Trust Office. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Custodian, and of the Depositary or its nominee, as hereinafter provided.

 

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(c) Physical Securities may be exchanged for interests in Global Securities pursuant to Sections 2.8(d) and 2.9(a) only. Physical Securities shall be duly executed by the Company and authenticated and delivered by the Trustee shall be registered, in the case of Physical Securities issued pursuant to Section 2.8(d), in such names as the Depositary shall identify in writing as the beneficial owners of the Securities represented by the Global Security or Global Securities (or any nominee thereof) being exchanged, and, in the case of Physical Securities issued pursuant to Section 2.9(a), in the in the name of the Institutional Accredited Investor purchasing such Security pursuant to Section 2.9(a).

 

Section 2.3. Legends.

 

(a) Restricted Securities Legends.

 

Each Security issued hereunder shall, upon issuance, bear the legend set forth in Section 2.3(a)(i), and each share of Common Stock issued upon conversion of any Security issued hereunder, shall, upon issuance, bear the legend set forth in Section 2.3(a)(ii) (each such legend, a “ Restricted Securities Legend ”), and such legend shall not be removed except as provided in Section 2.3(a)(iii). Each Security that bears or is required to bear the Restricted Securities Legend set forth in Section 2.3(a)(i) (together with each share of Common Stock issued upon conversion of such Security that bears or is required to bear the Restricted Securities Legend set forth in Section 2.3(a)(ii), collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.3(a) (including the Restricted Securities Legend set forth below), and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, shall be deemed to have agreed to be bound by the restrictions on transfer set forth herein.

 

As used in Section 2.3(a), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.

 

(i) Restricted Securities Legend for Securities.

 

Except as provided in Section 2.3(a)(iii), until two years after the original issuance date of any Security, any certificate evidencing such Security (and all Securities issued in exchange therefor or substitution thereof, other than share of Common Stock, if any, issued upon conversion thereof which shall bear the legend set forth in Section 2.3(a)(ii), if applicable) shall bear a Restricted Securities Legend in substantially the following form:

 

THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:

 

(1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OR (B) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”) THAT IS PURCHASING AT LEAST $100,000 IN AGGREGATE PRINCIPAL AMOUNT OF CODES;

 

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(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON STOCK UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING CODES IN AN AGGREGATE PRINCIPAL AMOUNT OF AT LEAST $100,000, AND THAT PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND WARRANTIES RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND

 

(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

 

IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO

 

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CLAUSE (2)(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE 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. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE (2)(D) OR CLAUSE (2)(E) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY.

 

(ii) Restricted Securities Legend for Common Stock Issued Upon Conversion of the Securities.

 

Until two years after the original issuance date of any Security, any stock certificate representing Common Stock issued upon conversion of such Security shall bear a Restricted Securities Legend in substantially the following form:

 

THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE EXPIRATION OF TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED,

 

(1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING COMMON STOCK WITH A VALUE OF AT LEAST $100,000 AND THAT PRIOR TO SUCH TRANSFER, FURNISHES TO EQUISERVE TRUST COMPANY, AS TRANSFER AGENT (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND WARRANTIES RELATING TO THE RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE COMPANY), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION

 

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STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;

 

(2) PRIOR TO ANY SUCH TRANSFER OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(E) ABOVE, IT WILL FURNISH TO EQUISERVE TRUST COMPANY (OR ANY SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE 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; AND

 

(3) IT WILL DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

 

THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE (1)(D) OR CLAUSE (1)(E) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY UPON THE CONVERSION OF WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED.

 

(iii) Removal of the Restricted Securities Legends.

 

Each Security or share of Common Stock issued upon conversion of any CODES (other than shares of Common Stock issued upon conversion of a CODES that previously were sold pursuant to Rule 144, if available, or 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 sale) shall bear the applicable Restricted Securities Legend set forth in Section 2.3(a)(i) or 2.3(a)(ii), as applicable, until the earlier of:

 

(1) the date which is two years after the original issuance date of such Security; and

 

(2) the date such Security has, or such shares of Common Stock have been sold pursuant to Rule 144, if available, or 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 sale).

 

The Holder must give notice thereof to the Trustee, as applicable.

 

In the event Rule 144(k) as promulgated under the Securities Act is amended to shorten the two-year period under Rule 144(k), then, the references in the restrictive legends set

 

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forth above to “TWO YEARS”, and in the corresponding transfer restrictions described above, the Securities and the shares of Common Stock will be deemed to refer to such shorter period, from and after receipt by the Trustee of an Officers’ Certificate and an Opinion of Counsel to that effect. As soon as practicable after the Company knows of the effectiveness of any such amendment to shorten the two-year period under Rule 144(k), unless such changes would otherwise be prohibited by, or would cause a violation of, the U.S. federal securities laws applicable at the time, the Company will provide to the Trustee an Officers’ Certificate and an Opinion of Counsel as to the effectiveness of such amendment and the effectiveness of such change to the restrictive legends and transfer restrictions.

 

Notwithstanding the foregoing, the Restricted Securities Legend may be removed if there is delivered to the Company such satisfactory evidence, which may include an opinion of independent counsel, as may be reasonably required by the Company that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Securities or Common Stock will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the written direction of the Company, shall authenticate and deliver in exchange for such Securities another Security or Securities having an equal aggregate principal amount that does not bear such legend. If the Restricted Securities Legend has been removed from a Securities as provided above, no other Security issued in exchange for all or any part of such Security shall bear such legend, unless the Company has reasonable cause to believe that such other Security is a “restricted security” within the meaning of Rule 144 and instructs the Trustee in writing to cause a Restricted Securities Legend to appear thereon.

 

Any Security (or security issued in exchange or substitution thereof) 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 Restricted Securities Legend set forth therein or in Section 2.3(a)(iii) have been satisfied may, upon surrender of such Security for exchange to the Registrar in accordance with the provisions of Section 2.7 hereof, be exchanged for a new Security or Securities, of like tenor and aggregate principal amount which shall not bear the Restricted Securities Legend required by Section 2.3(a)(i).

 

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 Restricted Securities Legend set forth therein or in Section 2.3(a)(iii) have been satisfied may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of the Transfer Agent, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common Stock, which shall not bear the Restricted Securities Legend required by Section 2.3(a)(ii).

 

(b) Global Security Legend.

 

Each Global Security shall also bear the following legend on the face thereof:

 

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR

 

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REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

 

(c) Legend for Physical Securities.

 

Physical Securities, in addition to the legend set forth in Section 2.3(a)(i), if then applicable, will also bear a legend substantially in the following form:

 

THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A GLOBAL SECURITY UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH EXCHANGE, WILL HOLD EITHER NO SECURITIES OR A MINIMUM AGGREGATE BENEFICIAL INTEREST IN THE SECURITIES OF AT LEAST ONE HUNDRED THOUSAND DOLLARS ($100,000).

 

(d) Tax Legend.

 

All Securities, in addition to any other legends required by this Section 2.3, will also bear a legend substantially in the following form:

 

THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS SUBJECT TO THE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT PAYMENTS UNDER TREASURY REGULATION § 1.1275-4(b). FOR INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY, THE COMPARABLE YIELD

 

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AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, YOU SHOULD SUBMIT A WRITTEN REQUEST FOR IT TO THE COMPANY AT THE COMPANY’S ADDRESS SPECIFIED IN SECTION 9.7 OF THE INDENTURE.

 

Section 2.4. Execution, Authentication, Delivery and Dating of the Securities.

 

(a) Two Officers shall execute the Securities on behalf of the Company by manual or facsimile signature. Securities bearing the manual or facsimile signatures of individuals who were at the time of the execution of the Securities the proper Officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of authentication of such Securities.

 

(b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise. No Security shall be entitled to any benefit under this Indenture, or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by or on behalf of the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. The Trustee may appoint an authenticating agent or agents reasonably acceptable to the Company with respect to the Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.

 

(c) Each Security shall be dated the date of its authentication. The Trustee shall authenticate and deliver Securities for original issue upon one or more Company Orders without any further action by the Company. The aggregate principal amount of Securities Outstanding at any time may not exceed $300 million (or up to $345 million if the Initial Purchasers’ option set forth in Section 2 of the Purchase Agreement is exercised in full). In the event that the Initial Purchasers exercise their option subsequent to the Closing Date, the Company may deliver to the Trustee a Company Order authorizing the Trustee to increase the aggregate principal amount of Securities Outstanding evidenced by a global Security, whereupon the Trustee shall make appropriate notation on the Schedule of Increases or Decreases in Global CODES evidencing the issuance by the Company of the additional principal amount of Securities that are the subject of the exercise by the Initial Purchasers of their option.

 

Section 2.5. Registrar, Paying Agent and Calculation Agent.

 

The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Securities may be presented for payment (the “ Paying Agent ”). The Registrar shall keep a register of the Securities (the “ Register ”) and of their transfer and exchange. The Company

 

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may appoint one or more co-Registrars and one or more additional Paying Agents for the Securities. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any additional registrar. The Company may change any Paying Agent or Registrar without prior notice to any Holder.

 

The Company shall also appoint a Calculation Agent to perform the calculations required pursuant to this Indenture and the Securities.

 

The Company will cause each Paying Agent (other than The Bank of New York) 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) hold all sums of money or Common Stock held by it for the payment of any amounts due and payable in respect of the Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture;

 

(2) give the Trustee notice of any Default by the Company in the making of any such payment; and

 

(3) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

The Company shall give prompt written notice to the Trustee of the name and address of any Agent who is not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar, Paying Agent, or Calculation Agent, the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent or Registrar; provided, however , that none of the Company, its subsidiaries or the Affiliates of the foregoing shall act:

 

(1) as Paying Agent in connection with redemptions, offers to purchase and discharges, except as otherwise specified in this Indenture, and

 

(2) as Paying Agent or Registrar if a Default or Event of Default has occurred and is continuing.

 

The Company hereby initially appoints The Bank of New York as Registrar, Paying Agent and Calculation Agent.

 

Section 2.6. Paying Agent to Hold Assets in Trust.

 

Not later than 10:00 a.m. (New York City time) on or prior to each due date of payments in respect of any Security, the Company shall deposit with one or more Paying Agents a sum of money in immediately available funds sufficient to make such payments when so becoming due. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money so paid over to the Trustee.

 

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The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the making of payments in respect of the Securities and shall notify the Trustee of any Default by the Company in making any such payment. At any time during the continuance of any such Default, the Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money so held in trust.

 

If the Company shall act as a Paying Agent, it shall, prior to or on each such due date, segregate and hold in trust for the benefit of the Holders a sum sufficient with monies held by all other Paying Agents, to pay such amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as provided in this Indenture, and shall promptly notify the Trustee of its action or failure to act.

 

Section 2.7. General Provisions Relating to Registration, Transfer and Exchange.

 

The Securities are issuable only in registered form. A Holder may transfer a Security only by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Registrar in the Register. Furthermore, any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book-entry system maintained by the Holder of such Global Security (or its agent) and that ownership of a beneficial interest in the Global Security shall be required to be reflected in a book-entry. Notwithstanding the foregoing, in the case of a Restricted Security, a beneficial interest in a Global Security that is transferred in reliance on an exemption from the registration requirements of the Securities Act other than in accordance with Rule 144 or Rule 144A may only be transferred for a Physical Security unless the transferee is the Company or a Subsidiary of the Company.

 

When Securities are presented to the Registrar with a request to register the transfer or to exchange them for an equal principal amount of Securities of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested if the requirements hereunder for such transactions are met (including that such Securities are duly endorsed or accompanied by a written instrument of transfer duly executed by the Holder thereof or by an attorney who is authorized in writing to act on behalf of the Holder). Subject to Section 2.4, to permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange or redemption of the Securities, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or other similar governmental charge payable upon issuances pursuant to Section 2.12 and exchanges pursuant to Sections 2.14, 7.5 or 10.7).

 

Neither the Company nor the Registrar shall be required to exchange or register a transfer of any Securities:

 

(1) for a period of 15 days prior to the day of mailing of notice of redemption of Securities under Article 10 hereof;

 

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(2) so selected for redemption or, if a portion of any Security is selected for redemption, such portion thereof selected for redemption; or

 

(3) surrendered for conversion or, if a portion of any Security is surrendered for conversion, such portion thereof surrendered for conversion.

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Agent Members or beneficial owners of interests 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 2.8. Book-Entry Provisions for the Global Securities.

 

(a) The Global Securities initially shall:

 

(1) be registered in the name of the Depositary;

 

(2) be delivered to the Trustee as custodian for such Depositary, for credit to the accounts of the members of, participants in, the Depositary (the “ Agent Members ”) holding the Securities evidenced thereby, registered with the Depositary for credit to the accounts of the Agent Members then holding such Securities on behalf of Euroclear or Clearstream, as applicable);

 

(3) bear the Restricted Securities Legend set forth in Section 2.3(a)(i).

 

Agent Members shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall prevent the Company, the Trustee or any agent of the Company or Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security. With respect to any Global Security deposited on behalf of the subscribers for the Securities represented thereby with the Trustee as custodian for the Depositary for credit to their respective accounts (or to such other accounts as they may direct) at Euroclear or Clearstream, the provisions of the “Operating Procedures of the Euroclear System” and the “Terms and Conditions Governing Use of Euroclear” and the “Management Regulations” and “Instructions to Participants” of Clearstream, respectively, shall be applicable to the Global Securities.

 

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

 

(c) A Global Security may not be transferred, in whole or in part, to any Person other than the Depositary, and no such transfer to any such other Person may be registered. Beneficial interests in a Global Security may be transferred in accordance with the rules and procedures of the Depositary and the provisions of Section 2.9 hereof.

 

(d) If at any time:

 

(1) the Depositary notifies the Company in writing that it is no longer willing or able to continue to act as Depositary for the Global Securities, or the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary for the Global Securities is not appointed by the Company within 90 days of such notice or cessation;

 

(2) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Physical Securities under this Indenture in exchange for all or any part of the Securities represented by a Global Security or Global Securities; or

 

(3) an Event of Default has occurred and is continuing and the Registrar has received a request from the Depositary for the issuance of Physical Securities in exchange for such Global Security or Global Securities,

 

then the Depositary shall surrender such Global Security or Global Securities to the Trustee for cancellation and the Company shall execute, and the Trustee, upon receipt of an Officers’ Certificate and Company Order for the authentication and delivery of Securities (which certificate and order the Company shall promptly deliver to the Trustee), shall authenticate and deliver in exchange for such Global Security or Global Securities, Physical Securities in an aggregate principal amount equal to the aggregate principal amount of such Global Security or Global Securities. Such Physical Securities shall be registered in such names as the Depositary shall identify in writing as the beneficial owners of the Securities represented by such Global Security or Global Securities (or any nominee thereof).

 

(e) In connection with any transfer of beneficial interests in a Global Security to the beneficial owners thereof pursuant to Section 2.8(d) hereof, the Registrar shall reflect on its books and records the date and a decrease in the aggregate principal amount of such Global Security in an amount equal to the aggregate principal amount of the beneficial interest in such Global Security to be transferred in the form of Physical Securities.

 

Section 2.9. Transfer Provisions.

 

Unless a Security is (i) transferred after the time period referred to in Rule 144(k) under the Securities Act or (ii) 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 sale), the following provisions shall apply to any sale, pledge or other transfer of Securities:

 

(a) Transfers of securities to an Institutional Accredited Investor that is not a QIB.

 

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The following provisions shall apply with respect to the registration of any proposed transfer of Securities to an Institutional Accredited Investor that is not a QIB:

 

(i) The Registrar shall register the transfer if the proposed transferee has delivered to the Trustee (A) a certificate substantially in the form of Exhibit F annexed hereto and (B) such opinion of counsel and other evidence satisfactory to the Company that such transfer is in compliance with the Securities Act, as requested by the Company.

 

(ii) If the proposed transferor is an Agent Member holding a beneficial interest in Global Securities, upon receipt by the Registrar of the documents required by clause (i) of this Section 2.9(a) and instructions given in accordance with the procedures of Euroclear or Clearstream, if applicable, the Depositary and the Registrar, the Registrar shall reflect on its books and records, and Euroclear or Clearstream, if applicable, or the Registrar shall instruct the Depositary to note or cause to be noted on such Global Securities, the date and a decrease in the principal amount of the Global Securities in an amount equal to the principal amount of the beneficial interest in the Global Securities to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and amount registered in the name of the transferee.

 

(iii) If the Securities to be transferred consist of Physical Securities, upon receipt by the Registrar of the documents required by clause (i) of this Section 2.9(a), the Company shall execute and the Trustee shall authenticate and deliver, new Physical Securities registered in the name of the transferee and the Trustee shall cancel the Physical Securities presented for transfer.

 

(b) Transfer of Securities to a QIB.

 

The following provisions shall apply with respect to the registration of any proposed transfer of Securities to a QIB:

 

(i) If the Securities to be transferred consist of a beneficial interest in the Global Securities, the transfer of such interest may be effected only through the book-entry systems maintained by Euroclear and Clearstream, if applicable, and the Depositary.

 

(ii) If the Securities to be transferred consist of Physical Securities, the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Security stating (or has otherwise advised the Company and the Registrar in writing) that the sale has been made:

 

in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of Security stating or has otherwise advised the Company and the Registrar in writing that:

 

(1) it is purchasing the Securities for its own account or an account with respect to which it exercises sole investment discretion, in each case for investment and not with a view to distribution;

 

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(2) it and any such account is a QIB within the meaning of Rule 144A;

 

(3) it is aware that the sale to it is being made in reliance on Rule 144A;

 

(4) it acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information; and

 

(5) it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

In addition, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Securities in an amount equal to the aggregate principal amount of the Physical Securities to be transferred, and the Trustee shall cancel the Physical Securities so transferred.

 

(c) Other Exchanges.

 

In the event that Global Securities are exchanged for Securities in definitive registered form pursuant to Section 2.8 prior to the effectiveness of a Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with the provisions of clauses (a) and (b) above (including the certification requirements intended to ensure that such transfers comply with Rule 144A) and such other procedures as may from time to time be adopted by the Company consistent with the provisions of Section 2.3 and the legends set forth therein.

 

(d) General.

 

By its acceptance of any Security or shares of Common Stock issuable upon conversion of the Securities bearing the Restricted Securities Legend, each Holder of such Security or shares of Common Stock acknowledges the restrictions on transfer of such Security or shares of Common Stock set forth in this Indenture and agrees that it will transfer such Security and such Common Stock only as provided in this Indenture. The Registrar shall not register a transfer of any Security unless such transfer complies with the restrictions on transfer of such Security set forth in this Indenture. The Registrar shall be entitled to receive and conclusively rely on written instructions from the Company verifying that such transfer complies with such restrictions on transfer. In connection with any transfer of Securities, each Holder agrees by its acceptance of the Securities to furnish the Registrar or the Company such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Registrar shall not be required to determine (but may conclusively rely on a determination made by the Company with respect to) the sufficiency of any such certifications, legal opinions or other information.

 

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The Registrar shall retain copies of all certifications, letters, notices and other written communications received pursuant to Section 2.8 hereof or this Section 2.9 in accordance with its customary procedures for the retention of records relating to the transfer of securities. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

 

Section 2.10. Holder Lists.

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with Section 312(a) of the TIA. If the Trustee is not the Registrar, the Company shall furnish to the Trustee prior to or on each Interest Payment Date and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders relating to such Interest Payment Date or request, as applicable.

 

Section 2.11. Persons Deemed Owners.

 

Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of the Security or the payment of any Redemption Price or Repurchase Price in respect thereof and Interest (including Contingent Interest) thereon, if any, for any purpose under this Indenture, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

Section 2.12. Mutilated, Destroyed, Lost or Stolen Securities.

 

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and aggregate principal amount and bearing a number not contemporaneously outstanding.

 

If there is delivered to the Company and the Trustee

 

(1) evidence to their satisfaction of the destruction, loss or theft of any Security, and

 

(2) 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 actual notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and, upon request, the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like tenor and principal amount, and bearing a number not contemporaneously outstanding.

 

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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, but subject to any conversion rights, may, instead of issuing a new Security, pay such Security, upon satisfaction of the condition set forth in the preceding paragraph.

 

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 2.12 in lieu of any destroyed, lost or stolen Security shall constitute an original contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and such new Security 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 2.12 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 2.13. Treasury Securities.

 

In determining whether the Holders of the requisite principal amount of Outstanding Securities are present at a meeting of Holders for quorum purposes or have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such determination as to the presence of a quorum or upon any such request, demand, authorization, direction, notice, consent or waiver, only such Securities of which a Responsible Officer of the Trustee has received written notice and are so owned shall be so disregarded.

 

Section 2.14. Temporary Securities.

 

Pending the preparation of Securities in definitive form, the Company may execute and the Trustee shall, upon written request of the Company, authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities shall be issuable in any authorized denomination, and substantially in the form of the Securities in definitive form but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security shall be executed by the Company and authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the Securities in definitive form. Without unreasonable delay, the Company will execute and deliver to the Trustee Securities in definitive form (other than in the case of Securities in global form) and thereupon any or all temporary Securities (other than any such Securities in global form) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 9.2 and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal principal amount of Securities in definitive form. Such exchange shall be made by the Company

 

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at its own expense and without any charge therefor. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Securities in definitive form authenticated and delivered hereunder.

 

Section 2.15. Cancellation.

 

All Securities surrendered for payment, redemption, purchase, conversion, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered shall be canceled promptly by the Trustee, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. Upon written instructions of the Company, the Trustee shall dispose of canceled Securities in accordance with its procedures for the disposition of cancelled securities in effect as of the date of such disposition. If the Company shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless the same are delivered to the Trustee for cancellation.

 

Section 2.16. CUSIP Numbers.

 

The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and the Trustee shall use CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any such notice 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 shall promptly notify the Trustee of any change in the CUSIP numbers.

 

Section 2.17. Defaulted Interest.

 

If the Company fails to make a payment of principal, Redemption Price, Repurchase Price or Interest (including Contingent Interest) on any CODES when due and payable, it shall pay Interest (including Contingent Interest) on such amounts (to the extent lawful), which shall be calculated using the applicable Interest Rate (such amounts, the “ Defaulted Interest ”). The Company may elect to pay such Defaulted Interest, plus any other Interest (including Contingent Interest) payable on it, to the Persons who are Holders on which the Interest (including Contingent Interest) is due on a subsequent special record date. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such CODES. The Company shall fix any such special record date and payment date for such payment. At least 15 days before any such special record date, the Company shall mail to Holders affected thereby a notice that states the special record date, the Interest Payment Date and amount to be paid.

 

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ARTICLE 3

 

DISCHARGE OF INDENTURE

 

Section 3.1. Discharge of Liability on Securities. When (i) the Company delivers to the Trustee all outstanding Securities (other than Securities replaced pursuant to Section 2.12) for cancellation or (ii) all outstanding Securities have become due and payable at their Stated Maturity or all outstanding Securities have been redeemed and the Company has deposited with the Trustee cash or, in the event of conversions pursuant to Article 12, Common Stock, sufficient to pay all amounts and deliver all Common Stock due and owing on all outstanding Securities (other than Securities replaced pursuant to Section 2.12) on the date of their Stated Maturity or the Redemption Date, as the case may be, and if in either case the Company pays all other sums payable hereunder by the Company, then this Indenture shall, subject to Section 5.8, cease to be of further effect. The Trustee shall join in the execution of a document prepared by the Company acknowledging satisfaction and discharge of this Indenture on demand of the Company accompanied by an Officers’ Certificate and Opinion of Counsel and at the cost and expense of the Company.

 

Section 3.2. Repayment to the Company.

 

The Trustee and the Paying Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Securities that remains unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person and the Trustee and the Paying Agent shall have no further liability to the Holders with respect to such money or securities for that period commencing after the return thereof.

 

ARTICLE 4

 

DEFAULTS AND REMEDIES

 

Section 4.1. Events of Default.

 

An “ Event of Default ”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(a) the Company defaults in converting the CODES into shares of Common Stock upon exercise of a Holder’s conversion right;

 

(b) the Company defaults in the payment of the principal amount, Redemption Price or Repurchase Price (each, a “ Defaulted Payment ”) on any Outstanding CODES when the same becomes due and payable at its Stated Maturity, upon redemption, repurchase, upon declaration, when due for purchase by the Company or otherwise;

 

(c) the Company defaults in the payment of an installment of Interest (including Contingent Interest) on any CODES when it becomes due and payable and such default continues for a period of 30 days;

 

(d) the Company fails to pay Additional Amounts, if any, with respect to any of the CODES for 30 days after the date when due;

 

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(e) the Company fails to perform or observe any other term, covenant or agreement contained in the Securities or this Indenture and the default continues for a period of 60 days after written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding CODES;

 

(f) the Company defaults under any indebtedness for money borrowed by the Company, any Guarantor or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, the aggregate outstanding principal amount of which is in an amount in excess of $25.0 million, for a period of 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of the Outstanding CODES, which default (i) is caused the Company’s failure to pay when due principal or interest on such indebtedness by the end of the applicable grace period, if any, unless such indebtedness is discharged or (ii) results in the acceleration of such indebtedness, unless such acceleration is waived, cured, rescinded or annulled; and

 

(g) the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company, in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company, under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;

 

(h) the commencement by the Company of a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, to the entry of a decree or order for relief in respect of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law, or the consent by the Company to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, of an assignment for the benefit of creditors, or the admission by the Company or any of its

 

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Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of two or more Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, expressly in furtherance of any such action; and

 

(i) except in accordance with Section 13.3 hereof, any Guarantee shall be held in any judicial proceeding to be unenforceable or invalid.

 

A Default under clause (e) or (f) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% of the principal amount of the CODES at the time outstanding notify the Company and the Trustee, of the Default and the Company does not cure such Default (and such Default is not waived) within the time specified in clause (e) or (f) above after actual receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a “Notice of Default.”

 

The Trustee shall, within 90 days of the occurrence of a Default, give to the Holders of the Securities notice of all uncured Defaults known to it and written notice of any event which with the giving of notice or the lapse of time, or both, would become an Event of Default; provided, however , the Trustee shall be protected in withholding such notice if it, in good faith, determines that the withholding of such notice is in the best interest of such Holders, except in the case of a Default in the payment of the Principal of or Interest (including Contingent Interest) on, any of the Securities when due or in the payment of any redemption or Repurchase Right.

 

Section 4.2. Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default with respect to Outstanding CODES (other than an Event of Default specified in Section 4.1(g) or 4.1(h) hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding CODES, by written notice to the Company, may declare due and payable 100% of the principal amount of all Outstanding CODES, plus any accrued and unpaid Interest (including Contingent Interest), to the date of payment. Upon a declaration of acceleration, such principal amount, and accrued and unpaid Interest (including Contingent Interest) to the date of payment shall be immediately due and payable. If an Event of Default specified in Section 4.1(g) and 4.1(h) occurs, the principal, and accrued and unpaid Interest (including Contingent Interest) on the Outstanding CODES shall become and be immediately due and payable. Once the principal and accrued and unpaid Interest (including Contingent Interest) on the Outstanding CODES shall become and be immediately due and payable, the Trustee may, at its discretion, proceed to protect and enforce the rights of the Holders at appropriate judicial proceedings.

 

Section 4.3. Other Remedies.

 

If an Event of Default with respect to Outstanding CODES occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the Defaulted Payment or Interest (including Contingent Interest) due and payable on the CODES or to enforce the performance of any provision of the Securities.

 

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The Trustee may maintain a proceeding in which it may prosecute and enforce all rights of action and claims under this Indenture or the Securities, even if it does not possess any of the Securities or does not produce any of them in the proceeding.

 

Section 4.4. Waiver of Past Defaults.

 

The Holders, either (a) through the written consent of not less than a majority of the principal amount of the Outstanding CODES, or (b) by the adoption of a resolution, at a meeting of Holders of the Outstanding CODES at which a quorum is present, by the Holders of at least a majority of the principal amount of the Outstanding CODES represented at such meeting, may, on behalf of the Holders of all of the CODES, waive an existing Default or Event of Default, except a Default or Event of Default:

 

(1) set forth in Sections 4.1(a), (b) and (c), provided, however , that subject to Section 4.7, the Holders of a majority of the principal amount of the Outstanding CODES may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration; or

 

(2) in respect of a covenant or provision hereof which, under Section 7.2 hereof, cannot be modified or amended without the consent of the Holders of each Outstanding CODES affected;

 

provided that any such waiver or rescission would not conflict with any judgment or decree of a court of competent jurisdiction.

 

Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; provided, however , that in the event such declaration of acceleration has been made based on the existence of an Event of Default under Section 4.1(f) and the default with respect to Indebtedness for money borrowed which gave rise to such Event of Default has been remedied, cured or waived, then, without any further action by the Holders, such declaration of acceleration shall be rescinded automatically and the consequences of such declaration shall be annulled. No such rescission or annulment shall affect any subsequent Default or impair any right consequent thereon; and provided, further, that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

Section 4.5. Control by Majority.

 

The Holders of a majority of the principal amount of the Outstanding CODES (or such lesser amount as shall have acted at a meeting pursuant to the provisions of this Indenture) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that:

 

(1) conflicts with any law or with this Indenture;

 

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(2) the Trustee determines may be unduly prejudicial to the rights of the Holders not joining therein; or

 

(3) may expose the Trustee to personal liability.

 

The Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

Section 4.6. Limitation on Suit.

 

No Holder of any Security shall have any right to pursue any remedy with respect to this Indenture or the Securities (including, instituting any proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a receiver or trustee) unless:

 

(1) such Holder has previously given written notice to the Trustee of an Event of Default that is continuing;

 

(2) the Holders of at least 25% of the principal amount of the Outstanding CODES shall have made written request to the Trustee to pursue the remedy;

 

(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against any costs, expenses and liabilities incurred in complying with such request;

 

(4) the Trustee has failed to comply with the request for 60 days after its receipt of such notice, request and offer of indemnity; and

 

(5) during such 60-day period, no direction inconsistent with such written request has been given to the Trustee by the Holders of a majority of the principal amount of the Outstanding CODES (or such amount as shall have acted at a meeting pursuant to the provisions of this Indenture);

 

provided, however , that no one or more of such Holders may use this Indenture to prejudice the rights of another Holder or to obtain preference or priority over another Holder.

 

Section 4.7. Unconditional Rights of Holders to Receive Payment and to Convert.

 

Notwithstanding any other provision in this Indenture, the Holder of any CODES shall have the right, which is absolute and unconditional, to receive payment of the principal amount, Redemption Price or Repurchase Price, and Interest (including Contingent Interest) in respect of the CODES held by such Holder, on or after the respective due dates expressed in the CODES or any Redemption Date or Repurchase Date, and to convert the CODES in accordance with Article 12, or to bring suit for the enforcement of any such payment on or after such respective dates or the right to convert, and such rights shall not be impaired or affected adversely without the consent of such Holder.

 

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Section 4.8. Collection of Indebtedness and Suits for Enforcement by the Trustee.

 

The Company covenants that if:

 

(1) a Default or Event of Default is made in the payment of Interest (including Contingent Interest) on any CODES when such Interest (including Contingent Interest) becomes due and payable and such Default or Event of Default continues for a period of 30 days; or

 

(2) a Default or Event of Default is made in the payment of the principal amount, Redemption Price or Repurchase Price on any CODES when the same becomes due and payable at its Stated Maturity, upon redemption, upon declaration when due for purchase by the Company or otherwise,

 

then the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such CODES, the entire principal then due and payable (as expressed therein or as a result of any acceleration effected pursuant to Section 4.2 hereof) on such CODES for any such amounts and, to the extent legally enforceable, Interest (including Contingent Interest) on such CODES, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company, wherever situated.

 

If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

Section 4.9. Trustee May File Proofs of Claim.

 

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or the property of the Company or its creditors, the Trustee (irrespective of whether the principal amount, Redemption Price, Repurchase Price or Interest (including Contingent Interest) in respect of the CODES shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any such amount) shall be entitled and empowered, by intervention in such proceeding or otherwise:

 

(1) to file and prove a claim for the whole amount of the principal amount, Redemption Price, Repurchase Price or Interest (including Contingent Interest) owing and unpaid in respect of the CODES and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders of CODES allowed in such judicial proceeding and

 

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(2) to collect and receive any monies, Common Stock or other property payable or deliverable on any such claim and to distribute the same,

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceedings is hereby authorized by each Holder of CODES to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of CODES, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 5.8.

 

Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept, or adopt on behalf of any Holder of a CODES, any plan of reorganization, arrangement, adjustment or composition affecting the CODES or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a CODES in any such proceeding.

 

Section 4.10. Restoration of Rights and Remedies.

 

If the Trustee or any Holder of a CODES has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of CODES shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 4.11. Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 2.12, no right or remedy conferred in this Indenture upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

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Section 4.12. Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities, as applicable.

 

Section 4.13. Priorities.

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee:

 

FIRST: to the payment of all amounts due to the Trustee under Section 5.8;

 

SECOND: to Holders for amounts due and unpaid on the Securities for the principal amount, Redemption Price, Repurchase Price or Interest (including Contingent Interest) as applicable, ratably, without preference or priority of any kind, according to such amounts due and payable on the CODES; and

 

THIRD: any remaining amounts shall be repaid to the Company.

 

The Trustee may fix a special record date and payment date for any payment to Holders pursuant to this Section 4.13. At least 15 days before such special record date, the Trustee shall mail to each Holder and the Company a notice that states the special record date, the payment date and the amount to be paid.

 

Section 4.14. Undertaking for Costs.

 

All parties to this Indenture agree, and each Holder of any CODES by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% of the principal amount of the Outstanding CODES, or to any suit instituted by any Holder of any CODES for the enforcement of (i) payments pursuant to Section 4.7 repurchase rights in accordance with Article 11 or (ii) conversion rights in accordance with Article 12. This Section 4.14 shall be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the TIA.

 

Section 4.15. Waiver of Stay or Extension Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force,

 

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which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE 5

 

THE TRUSTEE

 

Section 5.1. Certain Duties and Responsibilities.

 

(a) Except during the continuance of an Event of Default,

 

(1) The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture or the TIA, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided, however , that in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates or opinions to determine whether or not, on their face, they conform to the requirements to this Indenture (but need not investigate or confirm the accuracy of any facts stated therein).

 

(b) In case an Event of Default actually known to a Responsible Officer of the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

 

(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1) This paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 5.1;

 

(2) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(3) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with a direction received by it of the Holders of a majority of the principal amount of the Outstanding

 

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Securities (or such lesser amount as shall have acted at a meeting pursuant to the provisions of this Indenture) relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.

 

(d) Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 5.1.

 

(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any loss, liability, cost or expense (including, without limitation, reasonable fees and expenses of counsel).

 

(f) The Trustee shall not be obligated to pay interest on any money or other assets received by it unless otherwise agreed in writing with the Company. Assets held in trust by the Trustee need not be segregated from other funds except to the extent required by law.

 

(g) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.

 

(h) The Trustee shall not be deemed to have notice or actual knowledge of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact a Default is received by the Trustee pursuant to Section 14.2 hereof, and such notice references the Securities and this Indenture.

 

(i) The rights, privileges, protections, immunities and benefits given to the Trustee hereunder, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Paying Agent, authenticating agent, Calculation Agent, Conversion Agent or Registrar acting hereunder.

 

(j) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

 

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Section 5.2. Certain Rights of Trustee.

 

Subject to the provisions of Section 5.1 hereof and subject to Section 315(a) through (d) of the TIA:

 

(1) The Trustee may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.

 

(2) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel, or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.

 

(3) The Trustee may act through attorneys and agents and shall be responsible for the misconduct or negligence of any attorney or agent appointed with due care.

 

(4) The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith that it believed to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, unless the Trustee’s conduct constitutes negligence.

 

(5) The Trustee may consult with counsel of its selection and the advice of such counsel as to matters of law or legal interpretation shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(6) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.

 

(7) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty unless so specified herein.

 

Section 5.3. Individual Rights of Trustee.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest (as such term is defined in Section 310(b) of the TIA), it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee (to the extent permitted under Section 310(b) of the TIA) or resign. Any agent may do the same with like rights and duties. The Trustee is also subject to Sections 5.11 and 5.12 hereof.

 

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