EXHIBIT 4.2
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INDENTURE
BETWEEN
INFOCROSSING, INC.
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
4.00% CONVERTIBLE SENIOR NOTES DUE 2024
DATED AS OF JUNE 30, 2004
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section
Indenture Section
310(a)(1)........................................
5.11
(a)(2)......................................
5.11
(a)(3)......................................
n/a
(a)(4)......................................
n/a
(a)(5)......................................
5.11
(b).........................................
5.3; 5.11
(c).........................................
n/a
311(a)...........................................
5.12
(b).........................................
5.12
(c).........................................
n/a
312(a)...........................................
2.9
(b).........................................
14.3
(c).........................................
14.3
313(a)...........................................
5.7
(b)(1)......................................
n/a
(b)(2)......................................
5.7
(c).........................................
5.7; 14.2
(d).........................................
5.7
314(a)(1), (2),
(3)..............................
9.4; 14.2
(a)(4)......................................
9.5; 14.6
(b).........................................
n/a
(c)(1)......................................
14.5
(c)(2)......................................
14.5
(c)(3)......................................
n/a
(d).........................................
n/a
(e).........................................
14.6
(f).........................................
n/a
315(a)...........................................
5.1(a)
(b).........................................
5.6; 14.2
(c).........................................
5.1(b)
(d).........................................
5.1(c)
(e).........................................
4.14
316(a)(last
sentence)............................
7.2
(a)(1)(A)...................................
4.5
(a)(1)(B)...................................
4.4
(a)(2)......................................
n/a
(b).........................................
4.7
(c).........................................
7.4
317(a)(1)........................................
4.8
(a)(2)......................................
4.9
(b).........................................
2.6
318(a)...........................................
14.1
(b).........................................
n/a
(c).........................................
14.1
"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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x
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.
Definitions...............................................1
Section 1.2.
Incorporation by Reference of Trust Indenture Act........18
Section 1.3.
Rules of Construction....................................19
ARTICLE 2
THE NOTES
Section 2.1.
Title and Terms..........................................19
Section 2.2. Form
of Notes............................................21
Section 2.3.
Legends..................................................22
Section 2.4.
Execution, Authentication, Delivery and
Dating of the Notes...................................27
Section 2.5.
Registrar and Paying Agent...............................27
Section 2.6.
Paying Agent to Hold Assets in Trust.....................28
Section 2.7.
General Provisions Relating to Registration,
Transfer and Exchange..................................29
Section 2.8.
Book-Entry Provisions for the Global Notes...............30
Section 2.9.
Holder Lists.............................................31
Section 2.10. Persons
Deemed Owners....................................31
Section 2.11. Mutilated,
Destroyed, Lost or Stolen Notes...............31
Section 2.12. Treasury
Notes...........................................32
Section 2.13. Temporary
Notes..........................................32
Section 2.14.
Cancellation.............................................33
Section 2.15. CUSIP
Numbers............................................33
Section 2.16. Defaulted
Interest.......................................33
Section 2.17. Transfer
Provisions......................................34
ARTICLE 3
DISCHARGE OF INDENTURE
Section 3.1.
Discharge of Liability on Notes..........................35
Section 3.2.
Repayment to the Company.................................36
ARTICLE 4
DEFAULTS AND REMEDIES
Section 4.1.
Events of Default........................................36
Section 4.2.
Acceleration of Maturity; Rescission and Annulment.......38
Section 4.3.
Other Remedies...........................................39
Section 4.4.
Waiver of Past Defaults..................................39
Section 4.5.
Control by Majority......................................39
Section 4.6.
Limitation on Suit.......................................40
Section 4.7.
Unconditional Rights of Holders to Receive
Payment and to Convert................................40
Section 4.8.
Collection of Indebtedness and Suits for
Enforcement by the Trustee............................41
Section 4.9.
Trustee May File Proofs of Claim.........................41
Section 4.10.
Restoration of Rights and Remedies.......................42
Section 4.11. Rights and
Remedies Cumulative...........................42
Section 4.12. Delay or
Omission Not Waiver.............................42
Section 4.13.
Priorities...............................................43
Section 4.14.
Undertaking for Costs....................................43
Section 4.15. Waiver of
Stay or Extension Laws.........................43
ARTICLE 5
THE TRUSTEE
Section 5.1.
Certain Duties and Responsibilities......................44
Section 5.2.
Certain Rights of Trustee................................45
Section 5.3.
Individual Rights of Trustee.............................46
Section 5.4.
Money Held in Trust......................................46
Section 5.5.
Trustee's Disclaimer.....................................46
Section 5.6.
Notice of Defaults.......................................46
Section 5.7.
Reports by Trustee to Holders............................47
Section 5.8.
Compensation and Indemnification.........................47
Section 5.9.
Replacement of Trustee...................................48
Section 5.10. Successor
Trustee by Merger, Etc.........................49
Section 5.11. Corporate
Trustee Required; Eligibility..................49
Section 5.12. Collection
of Claims Against the Company.................49
ARTICLE 6
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER,
SALE, LEASE OR OTHER DISPOSITION
Section 6.1.
Company May Consolidate, Etc., Only on Certain Terms.....49
Section 6.2.
Successor Corporation Substituted........................50
ARTICLE 7
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 7.1.
Without Consent of Holders of Notes......................50
Section 7.2. With
Consent of Holders of Notes.........................51
Section 7.3.
Compliance with Trust Indenture Act......................52
Section 7.4.
Revocation of Consents and Effect of Consents or Votes...52
Section 7.5.
Notation on or Exchange of Notes.........................53
Section 7.6.
Trustee to Sign Amendment, Etc...........................53
Section 7.7.
Effect of Amendment......................................53
ARTICLE 8
[INTENTIONALLY OMITTED]
ARTICLE 9
COVENANTS
Section 9.1.
Incurrence of Additional Indebtedness....................54
Section 9.2.
Payment of Principal, Redemption Price, Repurchase
Price and Interest....................................56
Section 9.3.
Maintenance of Offices or Agencies.......................56
Section 9.4.
Corporate Existence......................................57
Section 9.5.
Reports..................................................57
Section 9.6.
Compliance Certificate...................................57
Section 9.7.
Resale of Certain Notes..................................58
Section 9.8.
Designation of Restricted and Unrestricted
Subsidiaries..........................................58
ARTICLE 10
REDEMPTION OF NOTES
Section 10.1. Optional
Redemption......................................59
Section 10.2. Notice to
Trustee........................................60
Section 10.3. Selection
of Notes to Be Redeemed........................60
Section 10.4. Notice of
Redemption.....................................60
Section 10.5. Effect of
Notice of Redemption...........................61
Section 10.6. Deposit
and Payment of Redemption Price..................62
Section 10.7. Notes
Redeemed in Part...................................62
ARTICLE 11
PURCHASE AT THE OPTION OF A HOLDER UPON SPECIFIC
REPURCHASE DATES OR CHANGE OF CONTROL
Section 11.1. Purchase
Right...........................................63
Section 11.2. Repurchase
Event Notice..................................64
Section 11.3. Delivery
of Repurchase Event Purchase Notice;
Form of Repurchase Event Purchase Notice; Withdrawal
of Repurchase Event Purchase Notice...................64
Section 11.4. Exercise
of Purchase Rights..............................66
Section 11.5. Deposit
and Payment of the Purchase Price................66
Section 11.6. Effect of
Delivery of Repurchase Event Purchase
Notice and Purchase...................................67
Section 11.7. Physical
Notes Purchased in Part.........................67
Section 11.8. Covenant
to Comply With Securities Laws Upon
Purchase of Notes.....................................68
Section 11.9. Repayment
to the Company.................................68
ARTICLE 12
CONVERSION OF NOTES
Section 12.1. Conversion
Right; Expiration of Conversion Right;
Conversion Price; Limitation on Ability to Exercise
Conversion Right......................................68
Section 12.2. Exercise
of Conversion Right.............................71
Section 12.3. Fractions
of Shares......................................73
Section 12.4. Adjustment
of Conversion Price...........................73
Section 12.5.
Consolidation or Merger of the Company...................82
Section 12.6. Notice of
Adjustments of Conversion Price................84
Section 12.7. Notice
Prior to Certain Actions..........................84
Section 12.8. Company to
Reserve Common Stock..........................85
Section 12.9. Common
Stock to be Fully Paid and Nonassessable..........85
Section 12.10. Taxes on
Conversions.....................................85
Section 12.11. Cancellation of
Converted Notes..........................86
Section 12.12. Cash Conversion
Option...................................86
Section 12.13. Responsibility
of Trustee for Conversion Provisions......87
Section 12.14. Withholding
Taxes on Adjustments of the
Conversion Price......................................87
ARTICLE 13
MAKE WHOLE PREMIUM
Section 13.1. Make Whole
Premium.......................................88
Section 13.2.
Adjustments Relating To Make Whole Premium...............91
ARTICLE 14
OTHER PROVISIONS OF GENERAL APPLICATION
Section 14.1. Trust
Indenture Act Controls.............................92
Section 14.2.
Notices..................................................92
Section 14.3.
Communication by Holders with Other Holders..............93
Section 14.4. Acts of
Holders of Notes.................................93
Section 14.5.
Certificate and Opinion as to Conditions Precedent.......94
Section 14.6. Statements
Required in Certificate or Opinion............94
Section 14.7. Effect of
Headings and Table of Contents.................95
Section 14.8. Successors
and Assigns...................................95
Section 14.9.
Separability Clause......................................95
Section 14.10. Benefits of
Indenture....................................95
Section 14.11. Governing
Law............................................95
Section 14.12.
Counterparts.............................................95
Section 14.13. Legal
Holidays...........................................95
Section 14.14. Recourse Against
Others..................................96
Section 14.15. Tax
Treatment............................................96
EXHIBITS
EXHIBIT A
Form of Note....................................A-1
EXHIBIT B
Form of Repurchase Event Purchase Notice........B-1
EXHIBIT C
Form of Conversion Notice.......................C-1
<PAGE>
INDENTURE, dated
as of June 30, 2004 (this "INDENTURE"), between
Infocrossing, Inc., a corporation duly
organized and existing under the laws of
the State of Delaware, having its principal
office at 2 Christie Heights Street,
Leonia, New Jersey 07605 (the "COMPANY")
and Wells Fargo Bank, National
Association, a national association
organized under the laws of the United
States, as Trustee (the "TRUSTEE"), having
its corporate trust office at Sixth
St. and Marquette Ave., MAC N9303-120,
Minneapolis, Minnesota 55479.
RECITALS OF THE COMPANY
WHEREAS, the
Company has duly authorized the creation of an issue of its
4.00% Convertible Senior Notes due 2024
(the "NOTES") of substantially 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; and
WHEREAS, all
things necessary to make the Notes, when the Notes are duly
executed by the Company and authenticated
and delivered hereunder and duly
issued by the Company, the valid
obligations of the Company, and to make this
Indenture a valid and binding agreement of
the Company, in accordance with their
and its terms, have been done.
NOW, THEREFORE,
for and in consideration of the premises and the purchase
of the Notes by the Holders (as defined
below) thereof, it is mutually
covenanted and agreed, for the equal and
proportionate benefit of all Holders,
as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.
Definitions.
For all purposes
of this Indenture and the Notes, the following terms are
defined as follows:
"ACT", when used
with respect to any Holder, has the meaning specified in
Section 14.4(a).
"ACQUIRED DEBT"
means, with respect to any specified Person, Indebtedness
of any other Person existing at the time
such other Person is merged with or
into or became a Subsidiary of such
specified Person, whether or not such
Indebtedness is incurred in connection
with, or in contemplation of, such other
Person merging with or into, or becoming a
Restricted Subsidiary of, such
specified Person.
"ADDITIONAL
INTEREST" means the interest, if any, payable on the Notes
pursuant to Section 3 of the Registration
Rights Agreement.
"ADDITIONAL
PREMIUM" has the meaning specified in Section 13.1(b).
"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
purposes of this definition, "control,"
as used with respect to any Person, means
the possession, directly or
<PAGE>
indirectly, of the power to direct or cause
the direction of the management or
policies of such Person, whether through
the ownership of voting securities, by
agreement or otherwise; provided that
beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to
be control. For purposes of this
definition, the terms "controlling,"
"controlled by" and "under common control
with" have correlative meanings.
"AGENT MEMBER" has the
meaning specified in Section 2.8.
"APPLICABLE
CONVERSION PRICE" means, for each Trading Day on which the
Market Price of the Common Stock is
measured, the Conversion Price in effect on
such Trading Day at the time the Market
Price is determined.
"APPLICABLE
CONVERSION VALUE" means, for each Trading Day on which the
Trading Price of the Notes is measured, the
Conversion Value, in effect on such
Trading Day at the time the Trading Price
is determined.
"ASSET SALE"
means:
(a) the sale, lease, conveyance or
other disposition of any assets or
rights; and
(b) the issuance of Equity Interests
in any of the Company's Restricted
Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding
the preceding, none of the following items will be deemed
to be an Asset Sale:
(a) any single transaction or series
of related transactions that involves
assets having a fair market value of less than $1 million;
(b) a transfer of assets between or
among the Company and its Restricted
Subsidiaries;
(c) an issuance of Equity Interests by
a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the
Company;
(d) the sale or lease of products,
services or accounts receivable in the
ordinary course of business and any sale or other disposition
of
damaged, worn-out or obsolete assets in the ordinary course of
business;
and
(e) the sale or other disposition of
cash or cash equivalents.
"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 the board of directors of
the Company empowered to act for it
with respect to this Indenture.
2
<PAGE>
"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, with respect to any Note, a day that in The City of
New York is not a day on which banking
institutions are authorized by law or
regulation to close.
"CALCULATION
AGENT" has the meaning set forth in Section 13.1(e).
"CAPITAL LEASE
OBLIGATION" means, at the time any determination is to be
made, the amount of the liability in
respect of a capital lease that would at
that time be required to be capitalized on
a balance sheet prepared in
accordance with GAAP, and the stated
maturity (for purposes of this definition,
"stated maturity" means, with respect to
any installment of interest or
principal on any series of Indebtedness,
the date on which the payment of
interest or principal was scheduled to be
paid in the documentation governing
such Indebtedness as of the date of this
Indenture, and will not include any
contingent obligations to repay, redeem or
repurchase any such interest or
principal prior to the date originally
scheduled for the payment thereof)
thereof shall be the date of the last
payment of rent or any other amount due
under such lease prior to the first date
upon which such lease may be prepaid by
the lessee without payment of a
penalty.
"CAPITAL STOCK"
means:
(i) in the case of a corporation,
corporate stock;
(ii) in the case
of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(iii) in the
case of a partnership or limited liability Company,
partnership interests (whether general or limited) or
membership
interests; and
(iv) any other
interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of
assets of, the issuing Person, but excluding from all of the
foregoing
any debt securities convertible into Capital Stock, whether or
not
such debt securities include any right of participation with
Capital
Stock.
"CASH AMOUNT"
has the meaning set forth in Section 12.12(a)(iii).
"CASH SETTLEMENT
AVERAGING PERIOD" has the meaning set forth in Section
12.12(a)(ii)(B).
"CASH SETTLEMENT
NOTICE PERIOD" has the meaning set forth in Section
12.12(a).
"CHANGE OF
CONTROL" means the occurrence of any of the following after the
original issuance of the Notes when any of
the following has occurred:
3
<PAGE>
(i) the acquisition by any "person" or
"group" (within the meaning of
Sections 13(d)(3) and 14(d)(2), respectively, of the Exchange
Act)
deemed to be a "beneficial owner" (as defined in Rule 13d-3 and
Rule
13d-5 of the Exchange Act), directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
purchases, mergers 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);
(ii) the first
day on which a majority of members of the Board of Directors
are not Continuing Directors; or
(iii) 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), or 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
(a)
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
right to exercise, directly or indirectly, 50% or more of the
total
voting power of all shares of Capital Stock of the Company entitled
to
vote generally in the election of directors of the continuing
or
surviving Person immediately after such transaction or (b) 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 shares of Common Stock
solely
into shares of the common stock of the surviving entity.
"CHANGE OF
CONTROL PURCHASE DATE" has the meaning specified in Section
11.1
hereof.
"CLOSING DATE"
means June 30, 2004 or such later date on which the Notes
may be delivered pursuant to the Purchase
Agreement.
"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 Sections 12.5 and 12.7
hereof, shares issuable on conversion of
the Notes shall include only shares of the
class designated as Common Stock, no
par value, 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
4
<PAGE>
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.
"COMPANY ORDER"
means a written order signed in the name of the Company by
any Officer.
"CONSOLIDATED
CASH FLOW" means, with respect to any specified Person for
any period, the Consolidated Net Income of
such Person for such period plus,
without duplication:
(a) provision for taxes based on
income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that
such
provision for taxes was deducted in computing such Consolidated
Net
Income; plus
(b) the Fixed Charges of such Person
and its Restricted Subsidiaries for
such period, to the extent that such Fixed Charges were deducted
in
computing such Consolidated Net Income; plus
(c) depreciation, amortization
(including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash
expenses
that were paid in a prior period) and other non-cash expenses
(excluding any such non-cash expense to the extent that it
represents
an accrual of or reserve for cash expenses in any future period
or
amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such
period
to the extent that such depreciation, amortization and other
non-cash
expenses were deducted in computing such Consolidated Net
Income;
minus
(d) non-cash items increasing such
Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course
of
business,
in each case, on
a consolidated basis and determined in accordance with
GAAP.
"CONSOLIDATED
INDEBTEDNESS" means, with respect to any Person as of any
date of determination, the sum, without
duplication, of (i) the total amount of
Indebtedness of such Person and its
Subsidiaries plus (ii) the total amount of
Indebtedness of any other Person, to the
extent that such Indebtedness has been
guaranteed by the referent Person or one or
more of its Restricted Subsidiaries.
5
<PAGE>
"CONSOLIDATED
NET INCOME" means, with respect to any specified Person for
any period, the aggregate of the Net Income
of such Person and its Restricted
Subsidiaries for such period, on a
consolidated basis, determined in accordance
with GAAP; provided that:
(a) the Net Income (but not loss) of
any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of
accounting
will be included only to the extent of the amount of dividends
or
similar distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;
(b) the Net Income of any Restricted
Subsidiary will be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is
not
at the date of determination permitted without any prior
governmental
approval (that has not been obtained) or, directly or indirectly,
by
operation of the terms of its charter or any agreement,
instrument,
judgment, decree, order, statute, rule or governmental
regulation
applicable to that Restricted Subsidiary or its stockholders;
(c) the cumulative effect of a change
in accounting principles will be
excluded; and
(d) notwithstanding clause (1) above,
the Net Income of any Unrestricted
Subsidiary will be excluded, whether or not distributed to the
specified Person or one of its Subsidiaries.
"CONTINUING
DIRECTOR" means, as of any date of determination, any member of
the Board of Directors who (i) was a member
of the Board of Directors on the
date hereof, (ii) was nominated for
election or elected to the Board of
Directors with the approval of a majority
of the Continuing Directors who were
members of the Board of Directors at the
time of such new director's nomination
or election.
"CONVERSION
AGENT" means any Person authorized by the Company to convert
Notes in accordance with Article 12.
Initially, the Conversion Agent shall be
Wells Fargo Bank, National Association. The
Company may change the Conversion
Agent, but the Conversion Agent will not be
an affiliate of the Company
"CONVERSION
DATE" means, with respect to any Holder, the date on which such
Holder has satisfied all the requirements
to convert its Notes pursuant to
Section 12.2.
"CONVERSION OBLIGATION" has the
meaning specified in Section 12.1(k).
"CONVERSION
PRICE" has the meaning specified in Section 12.1(c).
"CONVERSION
RATE", at any time, shall equal $1,000 divided by the
Conversion Price at such time, rounded to
three decimal places (rounded up if
the fourth decimal place thereof is 5 or
more and otherwise rounded down).
"CONVERSION
RECORD DATE" shall mean, with respect to any dividend,
distribution or other transaction or event
in which the holders of Common Stock
6
<PAGE>
have the right to receive any cash,
securities or other property or in which the
Common Stock (or other applicable security)
is exchanged for or converted into
any combination of cash, securities or
other property, the date fixed for
determination of stockholders entitled to
receive such cash, securities or other
property (whether such date is fixed by the
Board of Directors or by statute,
contract or otherwise).
"CONVERSION
RETRACTION PERIOD" has the meaning set forth in Section
12.12(a).
"CONVERSION
SETTLEMENT DISTRIBUTION" has the meaning set forth in Section
12.12(a).
"CONVERSION
VALUE", on any day, means the product of the Market Price for
the Common Stock on that day multiplied by
the then-current Conversion Rate.
"CORPORATE TRUST
OFFICE" means for purposes of presentation or surrender of
Notes 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 or agent of the
Trustee located in the Borough of
Manhattan, The City of New York.
"CORPORATION"
means any corporation, association, limited liability
company, company and business trust.
"CREDIT
AGREEMENT" means, that certain Amended And Restated Term Loan
Agreement, dated as of April 2, 2004, among
the Company, the several banks and
other financial institutions from time to
time parties to the Credit Agreement
and CapitalSource Finance LLC, a Delaware
limited liability Company, as agent
for the lenders thereunder including any
related notes, Guarantees, collateral
documents, instruments and agreements
executed in connection therewith, and, in
each case, as amended, restated, modified,
renewed, refunded, replaced (whether
upon or after termination or otherwise) or
refinanced (including by means of
sales of debt securities to institutional
investors) in whole or in part from
time to time.
"CREDIT
FACILITIES" means, one or more debt facilities (including,
without
limitation, the Credit Agreement),
commercial paper facilities or other credit
extensions, in each case with banks or
other institutional lenders or investors
providing for revolving credit loans, term
loans, receivables financing
(including through the sale of receivables
to such lenders or to special purpose
entities formed to borrow from such lenders
against such receivables) notes,
bonds or letters of credit, in each case,
as amended, restated, modified,
renewed, refunded, replaced, increased or
refinanced in whole or in part from
time to time.
"CURRENT MARKET
PRICE" has the meaning specified in Section 12.4(g)(i).
"CUSTODIAN"
means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy
Law.
"DEBT TO EBITDA
RATIO" means, as of any date of determination, the ratio of
(a) the Consolidated Indebtedness of the
Company as of such date to (b) the
Consolidated Cash Flow of the Company for
the four most recent full fiscal
quarters ending immediately prior to such
date for which internal financial
statements are available, determined on a
pro forma basis (x) in accordance with
Regulation S-X under the Securities Act or
(y) as otherwise determined in good
7
<PAGE>
faith by the chief financial officer of the
Company after giving effect to all
acquisitions or dispositions of assets made
by the Company and its Restricted
Subsidiaries from the beginning of such
four-quarter period through and
including such date of determination
(including any related financing
transactions) as if such acquisitions and
dispositions had occurred at the
beginning of such four-quarter period. In
addition, for purposes of making the
computation referred to above, (i)
acquisitions that have been made by the
Company or any of its Restricted
Subsidiaries, including through mergers or
consolidations and including any related
financing transactions, during the
four-quarter reference period or subsequent
to such reference period and on or
prior to the date of determination shall be
deemed to have occurred on the first
day of the four-quarter reference period
and Consolidated Cash Flow for such
reference period shall be calculated
without giving effect to clause (iii) of
the proviso set forth in the definition of
Consolidated Net Income, and (ii) the
Consolidated Cash Flow attributable to
discontinued operations, as determined in
accordance with GAAP, and operations or
businesses disposed of prior to the date
of determination, shall be excluded.
"DEFAULT" means
an event which is, or after notice or lapse of time or both
would constitute, an Event of Default.
"DEFAULTED
PAYMENT" has the meaning specified in Section 4.1(b).
"DEFAULTED
INTEREST" has the meaning specified in Section 2.16
"DEPOSITARY"
means The Depository Trust Company, its nominees and their
respective successors.
"DISTRIBUTED
ASSETS" has the meaning specified in Section 12.4(d).
"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.
"DTC" has the
meaning specified in Section 12.2(b).
"EFFECTIVE DATE"
has the meaning specified in Section 13.1(b).
"EQUITY INTERESTS" means
Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but
excluding any debt security that is
convertible into, or exchangeable for,
Capital Stock).
"EVENT OF
DEFAULT" has the meaning specified in Section 4.1.
"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.
"EXCHANGE ACT"
means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission
thereunder.
8
<PAGE>
"EXISTING
INDEBTEDNESS" means up to $10.0 million in aggregate principal
amount of Indebtedness of the Company and
its Subsidiaries (other than
Indebtedness under the Credit Agreement) in
existence on the date of this
Indenture.
"EXPIRATION
TIME" has the meaning specified in Section 12.4(f).
"FAIR MARKET
VALUE" means, if there is a current market for the asset, debt
or transaction in question, the amount that
a willing buyer would pay a willing
seller in an arm's length transaction or,
in the absence of a current market for
such asset, debt or transaction, the amount
determined in good faith by the
Board of Directors that represents its
determination of the fair market value of
the asset.
"FINAL NOTICE
DATE" has the meaning set forth in Section 12.12(a).
"FIXED CHARGES"
means, with respect to any specified Person for any period,
the sum, without duplication, of:
(a) the consolidated interest expense
of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued,
including,
without limitation, amortization of debt issuance costs and
original
issue discount, non-cash interest payments, the interest component
of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations,
commissions,
discounts and other fees and charges incurred in respect of letter
of
credit or bankers' acceptance financings, and net of the effect of
all
payments made or received pursuant to Hedging Obligations in
respect
of interest rates; plus
(b) the consolidated interest expense
of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(c) any interest on Indebtedness of
another Person that is guaranteed by
such Person or one of its Restricted Subsidiaries whether or not
such
Guarantee is called upon.
"GAAP" has the
meaning specified in Section 1.3.
"GLOBAL NOTE"
has the meaning specified in Section 2.2(b).
"GUARANTEE"
means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary
course of business, direct or
indirect, in any manner including, without
limitation, by way of a pledge of
assets or through letters of credit or
reimbursement agreements in respect
thereof, of all or any part of any
Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements
to keep-well, to purchase assets,
goods, securities or services, to take or
pay or to maintain financial statement
conditions or otherwise).
"HEDGING
OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person incurred in the
normal course of business and not for
speculative purposes under:
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<PAGE>
(a) interest rate swap agreements
(whether from fixed to floating or from
floating to fixed), interest rate cap agreements and interest
rate
collar agreements;
(b) other agreements or arrangements
designed to manage interest rates or
interest rate risk; and
(c) other agreements or arrangements
designed to protect such Person
against fluctuations in currency exchange rates or commodity
prices.
"HOLDER", when
used with respect to any Note, including any Global Note,
means the Person in whose name the Note is
registered in the Register.
"INCUR" has the
meaning set forth in Section 9.1.
"INDEBTEDNESS"
means, with respect to any specified Person, any
indebtedness of such Person (excluding
accrued expenses and trade payables),
whether or not contingent:
(i) in respect of borrowed money;
(ii) evidenced
by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect
thereof);
(iii) in respect
of banker's acceptances;
(iv)
representing Capital Lease Obligations;
(v) representing the balance deferred
and unpaid of the purchase price of
any property or services due more than six months after such
property
is acquired or such services are completed; or
(vi)
representing any Hedging Obligations,
if and to the
extent any of the preceding items (other than letters of
credit and Hedging Obligations) would
appear as a liability upon a balance sheet
of the specified Person prepared in
accordance with GAAP. In addition, the term
"Indebtedness" includes the Guarantee by
the specified Person of any
Indebtedness of any other Person.
"INDENTURE"
means this instrument as originally executed or as it may from
time to time be supplemented or amended by
one or more supplemental indentures
entered into pursuant to the applicable
provisions hereof.
"INITIAL
PURCHASER" means Lehman Brothers Inc., as initial purchaser
under
the Purchase Agreement.
"INTEREST"
means, with respect to any Note, the interest payable on such
Note based upon the applicable Interest
Rate and, if applicable, any Defaulted
Interest.
10
<PAGE>
"INTEREST
PAYMENT DATE" means each of January 15 and July 15, provided,
however, that, if any such date is not a
Business Day, the Interest Payment Date
shall be the next succeeding Business
Day.
"INTEREST RATE"
has the meaning specified in Section 2.1(c). "MAKE WHOLE
PERCENTAGE" has the meaning specified in
Section 13.1(c)(iii).
"MAKE WHOLE
PREMIUM" has the meaning specified in Section 13.1(b).
"MAKE WHOLE
TABLE" has the meaning specified in Section 13.1(c)(iii).
"MARKET PRICE"
of a security on any date of determination means:
(i) the closing sale price (or, if no
closing sale price is reported, the
last reported sale price) of such security (regular way) on the
Nasdaq
National Market on such date;
(ii) if such
security is not listed for trading on the Nasdaq National
Market on any such date, the closing sale price as reported in
the
composite transactions for the principal U.S. securities exchange
on
which such security is listed;
(iii) if such
security is not so reported, the last price quoted by
Interactive Data Corporation for such security on such date or,
if
Interactive Data Corporation is not quoting such price, a
similar
quotation service selected by the Company;
(iv) if such
security is not so quoted, the average of the mid-point of the
last bid and ask prices for such security on such date from at
least
two dealers recognized as market-makers for such security selected
by
the Company for this purpose; or
(v) if such security is not so quoted,
the average of the last bid and ask
prices for such security on such date from a dealer engaged in
the
trading of convertible securities selected by the Company for
this
purpose.
"MATURITY" means
the date on which the Principal with respect to any
Outstanding Note becomes due and payable as
therein or herein provided, whether
at the Stated Maturity or by acceleration,
conversion, call for redemption,
exercise of a purchase right or
otherwise.
"NASDAQ NATIONAL
MARKET" means the National Association of Notes Dealers
Automated Quotation National Market or any
successor national securities
exchange or automated over-the-counter
trading market in the United States.
"NET INCOME"
means, with respect to any specified Person, the net income
(loss) of such Person, determined in
accordance with GAAP and before any
reduction in respect of preferred stock
dividends, excluding, however:
11
<PAGE>
(a) any gain (or loss), together with
any related provision for taxes on
such gain (or loss), realized in connection with: (a) any Asset
Sale;
or (b) the disposition of any securities by such Person or any of
its
Restricted Subsidiaries or the extinguishment of any Indebtedness
of
such Person or any of its Restricted Subsidiaries; and
(b) any extraordinary gain (or loss),
together with any related provision
for taxes on such extraordinary gain (or loss).
"NON-ELECTING
SHARE" has the meaning specified in Section 12.5.
"NON-RECOURSE
DEBT" means Indebtedness:
(a) as to which neither the Company
nor any of its Restricted Subsidiaries
(1) provides credit support of any kind (including any
undertaking,
agreement or instrument that would constitute Indebtedness), (2)
is
directly or indirectly liable as a guarantor or otherwise, or
(3)
constitutes the lender;
(b) no default with respect to which
(including any rights that the
holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary) would permit upon notice, lapse
of
time or both any holder of any other Indebtedness of the Company
or
any of its Restricted Subsidiaries to declare a default on such
other
Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its stated maturity (which term
shall
have the same meaning as in the definition of "Capital Lease
Obligation"); and
(c) as to which the lenders have been
notified in writing that they will
not have any recourse to the stock or assets of the Company or any
of
its Restricted Subsidiaries.
"NOTES" has the
meaning ascribed to it in the first paragraph under the
caption "Recitals of the Company".
"OFFICER" of the
Company means the Chairman of the Board, the Chief
Executive Officer, the President, the Chief
Operating Officer, the Chief
Financial Officer, the Treasurer, any
Assistant Treasurer, any Vice President,
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
Operating Officer, 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, which acceptance shall not be
unreasonably withheld.
12
<PAGE>
"OUTSTANDING",
when used with respect to Notes, means, as of the date of
determination, all Notes theretofore
authenticated and delivered under this
Indenture, except Notes:
(i) previously canceled by the Trustee
or delivered to the Trustee for
cancellation;
(ii) 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 Notes; provided, however, that if such Notes
are
to be redeemed, notice of such redemption has been duly given
pursuant
to this Indenture; and
(iii) which have
been paid in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to this
Indenture,
other than any such Notes in respect of which there shall have
been
presented to the Trustee proof satisfactory to it that such Notes
are
held by a bona fide purchaser in whose hands such Notes are
valid
obligations of the Company;
provided, however, that in
determining whether the Holders of the requisite
principal amount of Outstanding Notes have
consented to or voted in favor of any
request, demand, authorization, direction,
notice, consent, waiver, amendment or
modification hereunder, Notes 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
consent or vote, only Notes 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.
"PERMITTED
INDEBTEDNESS" has the meaning set forth in Section 9.1.
"PERMITTED
REFINANCING INDEBTEDNESS" means any Indebtedness of the Company
or any of its Restricted Subsidiaries
issued in exchange for, or the net
proceeds of which are used to renew,
refund, refinance, replace, defease or
discharge other Indebtedness of the Company
or any of its Restricted
Subsidiaries (other than intercompany
Indebtedness); provided that:
(a) the principal amount (or accreted
value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the
principal
amount (or accreted value, if applicable) of the Indebtedness
renewed,
refunded, refinanced, replaced, defeased or discharged (plus
all
accrued interest on the Indebtedness and the amount of all fees
and
expenses, including premiums, incurred in connection
therewith);
(b) such Permitted Refinancing
Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average
Life
to Maturity equal to or greater than the Weighted Average Life
to
Maturity of, the Indebtedness being renewed, refunded,
refinanced,
replaced, defeased or discharged;
13
<PAGE>
(c) if the Indebtedness being renewed,
refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to
the
Notes, such Permitted Refinancing Indebtedness has a final
maturity
date later than the final maturity date of, and is subordinated
in
right of payment to, the Notes on terms at least as favorable to
the
Holders of Notes as those contained in the documentation governing
the
Indebtedness being renewed, refunded, refinanced, replaced,
defeased
or discharged;
and
(d) such Indebtedness is incurred
either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness
being
renewed, refunded, refinanced, replaced, defeased or
discharged.
"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 NOTES"
means Notes issued in definitive, fully registered form
without interest coupons, substantially in
the form of Exhibit A hereto, with
the applicable legends as provided in
Section 2.3.
"PLACE OF
CONVERSION" means any city in which any Conversion Agent is
located.
"PLACE OF
PAYMENT" means any city in which any Paying Agent is located.
"PREDECESSOR
NOTE" of any particular Note, means every previous Note
evidencing all or a portion of the same
debt as that evidenced by such
particular Note; and, for the purposes of
this definition, any Note
authenticated and delivered under Section
2.11 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note
shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or
stolen Note.
"PRINCIPAL"
means, with respect to any Outstanding Note, the principal
amount of that Note, including the
Redemption Price, if applicable, and the
Repurchase Price, if applicable, payable
with respect to that Note.
"PURCHASE
AGREEMENT" means the Purchase Agreement, dated June 24, 2004,
between the Company and the Initial
Purchaser relating to the offering and sale
of the Notes.
"PURCHASE RIGHT"
has the meaning specified in Section 11.1.
"PURCHASED
SHARES" has the meaning specified in Section 12.4(f).
"QIB" means a
"qualified institutional buyer" as defined under Rule 144A.
"REDEMPTION
DATE", when used with respect to any Note to be redeemed, means
the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION
PRICE", when used with respect to any Note to be redeemed,
means the price per Note at which such Note
may be redeemed pursuant to Section
10.1, including any additional payment
pursuant to Section 10.1.
14
<PAGE>
"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 specified in Section 12.4(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 the date hereof,
between the Company and the Initial
Purchaser.
"REGULAR RECORD
DATE" for the Interest payable on the Notes means the
January 1 and the July 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 hereof.
"REPURCHASE
EVENT NOTICE" has the meaning specified in Section 11.2.
"REPURCHASE
EVENT PURCHASE NOTICE" has the meaning specified in Section
11.2 hereof.
"REPURCHASE
EVENTS" has the meaning specified in Section 11.1.
"REPURCHASE
PRICE" has the meaning specified in Section 11.1 hereof.
"RESPONSIBLE
OFFICER", when used with respect to the Trustee, means any
officer of the Trustee, including any vice
president, assistant vice president,
any treasurer, any assistant treasurer, any
trust officer, or any other officer
of the Trustee customarily performing
functions similar to those performed by
any of the above designated officers and
also means, with respect to a
particular corporate trust matter, any
other officer to whom such matter is
referred because of such officer's
knowledge of and familiarity with the
particular subject.
"RESTRICTED
SECURITIES" means the securities defined as such in Section
2.3(a).
"RESTRICTED
SECURITIES LEGEND" has the meaning specified in Section 2.3(a).
"RESTRICTED
SUBSIDIARY" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted
Subsidiary.
"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.
15
<PAGE>
"SECURITIES ACT"
means the Securities Act of 1933, as amended and the rules
and regulations of the Commission
thereunder.
"SHELF
REGISTRATION STATEMENT" means the shelf registration statement
filed
with the Commission pursuant to the
Securities Act pursuant to the Registration
Rights Agreement.
"SIGNIFICANT
SUBSIDIARY" has the meaning assigned to it under Rule 405 of
the Securities Act.
"SPECIFIC REPURCHASE
DATE" has the meaning specified in Section 11.1.
"STATED
MATURITY" has the meaning assigned to it in Section 2.1.
"STOCK PRICE"
has the meaning specified in Section 13.1(b).
"STOCK PRICE
CAP" has the meaning specified in Section 13.1(b).
"STOCK PRICE
THRESHOLD" has the meaning specified in Section 13.1(b).
"SUBORDINATED
INDEBTEDNESS" means Indebtedness that (x) is made expressly
subordinate in right of payment to the
Notes and (y) does not provide at any
time for the payment, prepayment,
repayment, repurchase or defeasance, directly
or indirectly, of any principal or premium,
if any, thereon until at least 91
days after July 15, 2009 excluding for this
purpose pursuant to any provision
similar to the provisions of the covenant
applicable to the Notes described
under Article 11; provided that the Company
honors its obligations with respect
to the Notes.
"SUBSIDIARY"
means, with respect to any specified Person:
(i) any corporation, association or
other business entity of which more
than 50% of the total voting power of shares of Capital Stock
entitled
(without regard to the occurrence of any contingency and after
giving
effect to any voting agreement or stockholders' agreement that
effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association
or
other business entity is at the time owned or controlled, directly
or
indirectly, by that Person or one or more of the other Subsidiaries
of
that Person (or a combination thereof); and
(ii) any
partnership (a) the sole general partner or the managing
general
partner of which is such Person or a Subsidiary of such Person or
(b)
the only general partners of which are that Person or one or
more
Subsidiaries of that Person (or any combination thereof).
"SUBSIDIARY
INDEBTEDNESS" has the meaning set forth in Section 9.1.
"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.
16
<PAGE>
"TRADING DAY"
means:
(i) if the applicable security is
listed or admitted for trading on the
Nasdaq National Market, a day on which the Nasdaq National Market
is
open for business;
(ii) if that
security is not listed on the Nasdaq National Market, a day on
which trades may be made on the Nasdaq National Market;
(iii) if that
security is not so listed on the Nasdaq National Market 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
(iv) 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 the Notes on any date of determination means the average
of the secondary market bid quotations per
Note obtained by the Company or the
Conversion Agent for $1,000,000 principal
amount of the Notes at approximately
4:00 p.m., New York City time, on such
determination date from three independent
nationally recognized securities dealers
selected by the Company, provided that,
if:
(i) 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, and
(ii) if only one
such bid can reasonably be obtained by the Company or the
Conversion Agent, the one bid shall be used.
If
(i) either the Company or the
Conversion Agent cannot reasonably obtain at
least one bid for $1,000,000 principal amount of the Notes from
a
nationally recognized securities dealer or,
(ii) in the
reasonable judgment of the Company, the bid quotations are not
indicative of the secondary market value of the Notes,
then the Trading
Price of the Notes will equal (a) the then-applicable
Conversion Rate of the Notes multiplied by
(b) the Market Price of the Common
Stock on such determination date.
"TRIGGER EVENT"
has the meaning specified in Section 12.4(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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<PAGE>
"UNRESTRICTED
SUBSIDIARY" means any Subsidiary of the Company that is
designated by the board of directors of the
Company as an Unrestricted
Subsidiary pursuant to a resolution of the
board of directors, but only to the
extent that such Subsidiary:
(a) has no Indebtedness other than
Non-Recourse Debt;
(b) is not party to any agreement,
contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company
unless
the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such
Restricted
Subsidiary than those that might be obtained at the time from
Persons
who are not Affiliates of the Company;
(c) is a Person with respect to which
neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a)
to
subscribe for additional Equity Interests or (b) to maintain or
preserve such Person's financial condition or to cause such Person
to
achieve any specified levels of operating results; and
(d) has not guaranteed or otherwise
directly or indirectly provided credit
support for any Indebtedness of the Company or any of its
Restricted
Subsidiaries.
"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"
of any specified Person as of any date means the Capital
Stock of such Person that is at the time
entitled to vote in the election of the
board of directors of such Person.
"WEIGHTED
AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness
at any date, the number of years obtained
by dividing:
(a) the sum of the products obtained
by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or
other
required payments of principal, including payment at final
maturity,
in respect of the Indebtedness, by (b) the number of years
(calculated
to the nearest one-twelfth) that will elapse between such date and
the
making of such payment; by
(b) the then outstanding principal
amount of such Indebtedness.
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 Notes;
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"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
Notes 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:
(a) the terms defined in this Article
have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all 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");
(c) 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;
(d) all references to section and
article numbers in this Indenture shall
refer to sections and articles hereof, unless otherwise
specified.
ARTICLE 2
THE NOTES
Section 2.1.
Title and Terms.
(a) The Notes shall be designated as
the "4.00% CONVERTIBLE SENIOR NOTES
DUE 2024" of the Company. The aggregate principal amount of
Notes
which may be authenticated and delivered under this Indenture
is
limited to $60,000,000 (or $72,000,000 if the Initial
Purchaser's
option to purchase additional Notes as set forth in Section 2 of
the
Purchase Agreement is exercised in full), except for Notes
authenticated and delivered upon registration of, transfer of, or
in
exchange for, or in lieu of other Notes pursuant to Sections 2.7,
2.8,
2.12, 7.5, 10.7, 11.1 or 12.2 hereof. The Notes shall be issuable
in
denominations of $1,000 or integral multiples thereof.
(b) The Notes shall mature on July 15,
2024 (the "STATED MATURITY").
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<PAGE>
(c) The Notes shall bear Interest from
the date of their original issuance
until the principal amount thereof is paid or made available
for
payment, or until such date on which the Notes are converted,
redeemed
or
purchased as provided herein at a rate of 4.00% per annum (as
adjusted, if at all, the "INTEREST RATE"). Interest shall be
payable
semi-annually, in arrears, on each Interest Payment Date.
(d) Interest on the Notes shall be
computed (i) for any full semi-annual
period for which a particular Interest Rate is applicable, on
the
basis of a 360-day year comprised of twelve 30-day months and (ii)
for
any period for which a particular Interest Rate is applicable for
less
than a full semi-annual period for which Interest is calculated,
on
the basis of a 30-day month and, for such periods of less than
a
month, the actual number of days elapsed over a 30-day month.
(e) Interest shall be due and payable
on a Note as follows:
(i) A registered Holder as of the
close of business on a Regular Record
Date shall be entitled to receive and shall receive (except as
otherwise indicated in this Section 2.1(e)), accrued and unpaid
Interest on such Note from the preceding Interest Payment Date
(or
such earlier date on which Interest was last paid) to the
Interest
Payment Date next succeeding such Regular Record Date, other than
any
Note whose Stated Maturity is prior to such Interest Payment
Date.
(ii) In the
event that a Note becomes subject to redemption pursuant to
Article 10 and the Redemption Date occurs after a Regular Record
Date
but on or prior to the next succeeding Interest Payment Date,
the
Person whose Note becomes 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
from
the preceding Interest Payment Date (or such earlier date on
which
Interest was last paid) to, but excluding, the Redemption Date of
such
Note, even if such Person is not the Holder of such Note.
(iii) In the
event that a Note becomes subject to purchase pursuant to
Article 11, a Holder who exercises a Purchase Right with respect
to
such Note shall be entitled to receive and shall receive accrued
and
unpaid Interest on such Note from the preceding Interest Payment
Date
(or such earlier date on which Interest was last paid) to, but
excluding the applicable Repurchase Date for such Note, which
amount
shall be included in the applicable Repurchase Price thereof
pursuant
to Article 11.
(iv) In the
event that a Note is converted pursuant to Article 12, the
Holder who converts such Note on any date other than an
Interest
Payment Date shall not be entitled to receive unpaid Interest on
such
Note from the preceding Interest Payment Date until the
Conversion
Date, such amounts being deemed to have been paid by receipt of
shares
of Common Stock in full rather than canceled, extinguished or
forfeited. As a result, a Holder which converts a Note after a
Regular
Record Date but prior to the next succeeding Interest Payment
Date
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<PAGE>
will receive accrued and unpaid Interest on such Note for such
period
on such Interest Payment Date but will be required to remit to
the
Company an amount equal to that Interest at the time such
Holder
surrenders the Note for conversion, pursuant to Article 12;
provided,
however, that such Holder will not be required to remit such
Interest
if, prior to conversion or the delivery of a notice of
conversion
pursuant to Article 12, the Company has either delivered a notice
of
redemption as contemplated by Article 10 on or prior to the
third
Business Day after such Interest Payment Date or redeemed such
Note
pursuant to Article 10 and the Holder converts such Note after
a
Regular Record Date but prior to the next succeeding Interest
Payment
Date pursuant to Article 12.
(f) In addition to the amounts set
forth in Section 2.1(e), Holders shall
be entitled to receive Additional Interest, if any, on such
Note
pursuant and subject to the Registration Rights Agreement, but in
no
event shall a Holder be required to repay any Additional Interest
such
Holder receives following the remittance of Interest as specified
in
Section 2.1(e)(iv). Additional Interest shall be paid on dates
corresponding to the payment date of Interest on such Note pursuant
to
the Registration Rights Agreement.
(g) Payment of any Principal or
Interest (to the extent paid in cash) or
Additional Interest, if any, on Global Notes shall be payable by
the
Company to the Depositary in immediately available funds.
(h) Payment of any Principal on
Physical Notes shall be made at the office
or agency of the Company maintained for such purpose, initially
the
Corporate Trust Office of the Trustee. Interest and Additional
Interest, if any, on Physical Notes will be payable by (i) a
U.S.
Dollar check drawn on a U.S. bank mailed to the address of the
Person
entitled thereto as such address shall appear in the Register, or
(ii)
upon application to the Registrar not later than the relevant
Regular
Record Date by a Holder of an aggregate Principal amount of Notes
in
excess of $1,000,000, 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 Notes may be redeemable at the
option of the Company as provided
in and subject to Article 10.
(j) The Notes shall be purchased by
the Company at the option of Holders
as provided in and subject to Article 11 and Article 13.
(k) The Notes shall be convertible at
the option of the Holders as
provided in and subject to Article 12 and Article 13.
Section 2.2.
Form of Notes.
(a) Except as otherwise provided
pursuant to this Section 2.2, the Notes
are issuable in fully registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000 above
that
amount with applicable legends as are provided for in Section 2.3
and
in the form of one or more permanent global securities, except
as
provided herein (each a "GLOBAL NOTE" and, collectively, the
"GLOBAL
NOTES"), the form of which is contained in Exhibit A hereto. The
Notes
shall not be issuable in bearer form. The terms and provisions
contained in the form of Note shall constitute, and are hereby
expressly made, a part of this Indenture and to the extent
applicable,
the Company, and the Trustee, by their execution and delivery of
this
Indenture, expressly agree to such terms and provisions and to
be
bound thereby.
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<PAGE>
(b) The Notes are being offered and
sold by the Company pursuant to the
Purchase Agreement. Notes 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 Notes 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 NOTE" and collectively the "GLOBAL NOTES").
Each
Global Note 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. The aggregate principal amount of the Global Notes 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.
(c) Physical Notes acquired by QIBs in
accordance with Rule 144A may be
exchanged for interests in Global Notes pursuant to Sections
2.8(e)
and 2.17(a) only. Physical Notes shall be duly executed by the
Company
and authenticated and delivered by the Trustee.
Section 2.3.
Legends.
(a) Restricted Securities Legends.
Each Note 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 Note 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
Note 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 Note 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
Notes.
Except as
provided in Section 2.3(a)(iii), until two years after the
original issuance date of any Note, any
certificate evidencing such Note (and
all Notes 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 NOTE
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,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
22
<PAGE>
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT
AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE
HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT;
(2) REPRESENTS THAT IT IS PURCHASING
FOR ITS OWN ACCOUNT OR THE ACCOUNT OF
ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS IN ACCORDANCE WITH
RULE
144A;
(3) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS NOTE RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY
OR
THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE 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 THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) 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
(4) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE NOTE EVIDENCED
HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
3(D)
ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION
WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH
NOTE (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 3(D) 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 CLAUSE
3(B) OR 3(C) 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 OR THE TRUSTEE 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
23
<PAGE>
UPON THE EARLIER OF THE TRANSFER OF THE
SECURITY EVIDENCED HEREBY PURSUANT TO
CLAUSE 3(D) ABOVE OR THE EXPIRATION OF TWO
YEARS FROM THE ORIGINAL ISSUANCE OF
THE NOTE EVIDENCED HEREBY.
(ii) Restricted
Securities Legend for Common Stock Issued Upon Conversion
of the Notes.
Until two years
after the original issuance date of any Note, any stock
certificate representing Common Stock
issued upon conversion of such Note shall
bear a Restricted Securities Legend in
substantially the following form:
THE SHARES OF
COMMON STOCK EVIDENCED HEREBY HAVE 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
NOTE UPON THE CONVERSION OF WHICH THE
SHARES OF COMMON STOCK EVIDENCED HEREBY WAS
ISSUED:
(1) IT WILL NOT OFFER, SELL, ASSIGN,
TRANSFER, PLEDGE, ENCUMBER OR
OTHERWISE DISPOSE OF THE SHARES 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
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (D) 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;
(2) PRIOR TO ANY SUCH TRANSFER OTHER
THAN A TRANSFER PURSUANT TO CLAUSE
1(D) ABOVE, IT WILL FURNISH TO SUCH TRANSFER AGENT, (OR ANY
SUCCESSOR
TRANSFER AGENT, AS APPLICABLE) SUCH CERTIFICATIONS, LEGAL OPINIONS
OR
OTHER INFORMATION AS THE TRANSFER AGENT OR 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 ARE TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
1(D)
24
<PAGE>
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) ABOVE OR THE EXPIRATION OF TWO
YEARS FROM THE ORIGINAL ISSUANCE OF THE
SECURITY UPON THE CONVERSION OF WHICH
THE SHARES OF COMMON STOCK EVIDENCED HEREBY
WERE ISSUED. AS USED HEREIN, THE
TERMS "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
(iii) Removal of
the Restricted Securities Legends.
Each Note or
share of Common Stock issued upon conversion of any Note
(other than shares of Common Stock issued
upon conversion of a Note that
previously were 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) 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:
(A) the date which is two years after
the original issuance date of such
Note; and
(B) the date such Note has, or such
shares of have been sold pursuant to a
registration statement that has been declared effective under
the
Securities Act (and which continues to be effective at the time
of
such 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 forth above to "TWO
YEARS", and in the corresponding
transfer restrictions described above, the
Notes 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 reasonably 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
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 Notes 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
25
<PAGE>
Company, shall authenticate and deliver in
exchange for such Notes another Note
or Notes having an equal aggregate
principal amount and Stated Maturity that
does not bear such legend. If the
Restricted Securities Legend has been removed
from a Note as provided above, no other
Note issued in exchange for all or any
part of such Note shall bear such legend,
unless the Company has reasonable
cause to believe that such other Note 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 Note (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 in Section 2.3(a)(i) as
set forth therein have been satisfied
may, upon surrender of such Note for
exchange to the Registrar in accordance
with the provisions of Section 2.7 hereof,
be exchanged for a new Note or Notes,
of like tenor and aggregate principal
amount and Stated Maturity 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 in Section 2.3(a)(ii) as set forth
therein 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 Note Legend.
Each Global Note
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 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
26
<PAGE>
TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
Section 2.4.
Execution, Authentication, Delivery and Dating of the Notes.
(a) One Officer shall execute the
Notes on behalf of the Company by manual
or facsimile signature. Notes bearing the manual or facsimile
signatures of individuals who were at the time of the execution of
the
Notes 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
Notes or did not hold such offices at the date of authentication
of
such Notes.
(b) At any time and from time to time
after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the
Company
to the Trustee for authentication, together with a Company Order
for
the authentication and delivery of such Notes, and the Trustee
in
accordance with such Company Order shall authenticate and deliver
such
Notes as provided in this Indenture and not otherwise. No Note
shall
be entitled to any benefit under this Indenture, or be valid or
obligatory for any purpose, unless there appears on such Note 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 Note shall be conclusive evidence,
and
the only evidence, that such Note 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
Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee
may
do so. Each reference in this Indenture to authentication by
the
Trustee includes authentication by such agent.
(c) Each Note shall be dated the date
of its authentication. The Trustee
shall authenticate and deliver Notes for original issue in an
aggregate principal amount of up to $60,000,000 (or $72,000,000 if
the
Initial Purchaser's option to purchase additional Notes as forth
in
Section 2 of the Purchase Agreement is exercised in full) upon one
or
more Company Orders without any further action by the Company.
The
aggregate principal amount of Notes Outstanding at any time may
not
exceed the amount set forth in the foregoing sentence.
Section 2.5.
Registrar and Paying Agent.
The Company
shall maintain an office or agency where Notes may be presented
for registration of transfer or for
exchange (the "REGISTRAR") and an office or
agency where Notes may be presented for
payment (the "PAYING AGENT"). The
Registrar shall keep a register of the
Notes (the "REGISTER") and of their
transfer and exchange. The Company may
appoint one or more co-Registrars and one
or more additional Paying Agents for the
Notes. 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 will
cause each Paying Agent (other than the Trustee) 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:
27
<PAGE>
(a) hold all sums of money or Common
Stock held by it for the payment of
any amounts due and payable in respect of the Notes 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;
(b) give the Trustee notice of any
Default by the Company in the making of
any such payment; and
(c) 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 Paying Agent who is not a
party to this Indenture. If the Company
fails to appoint or maintain another entity
as Registrar or Paying 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:
(i) as Paying Agent in connection with
redemptions, offers to purchase and
discharges, except as otherwise specified in this Indenture,
and
(ii) as Paying
Agent or Registrar if a Default or Event of Default has
occurred and is continuing.
The Company
hereby initially appoints the Trustee, as Registrar and Paying
Agent for the Notes.
Section 2.6.
Paying Agent to Hold Assets in Trust.
Not later than
11:00 a.m. (New York City time) on or prior to each due date
of payments in respect of any Note, the
Company shall deposit with one or more
Paying Agents a sum of money in immediately
available funds or Common Stock
sufficient to make such payments when so
becoming due. The Company at any time
may require a Paying Agent to pay all money
or Common Stock 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 or Common Stock so paid
over to the Trustee.
The Company
shall require each Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent
shall hold in trust for the benefit of
Holders or the Trustee all money and Common
Stock held by the Paying Agent for
the making of payments in respect of the
Notes 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 and Common Stock
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
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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 Notes are
issuable only in registered form. A Holder may transfer a
Note 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 Note
shall, by acceptance of such Global Note,
agree that transfers of beneficial
interests in such Global Note may be
effected only through a book-entry system
maintained by the Holder of such Global
Note (or its agent) and that ownership
of a beneficial interest in the Global Note
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
Note 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 Note.
When Notes are
presented to the Registrar with a request to register the
transfer or to exchange them for an equal
principal amount of Notes 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 Notes 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
Notes at the Registrar's request. No
service charge shall be made for any
registration of transfer or exchange or
redemption of the Notes, 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 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 Notes:
(a) for a period of 15 days prior to
the day of any selection of Notes for
redemption under Article 10 hereof;
(b) so selected for redemption or, if
a portion of any Note is selected
for redemption, such portion thereof selected for redemption;
or
(c) surrendered for conversion or, if
a portion of any Note 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 Note (including any transfers
between or among Agent Members or
beneficial owners of interests in any
Global Note) other than to require
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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 Notes.
(a) The Global Notes initially
shall:
(i) be registered in the name of the
Depositary;
(ii) 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 Notes evidenced
thereby;
and
(iii) bear the
Restricted Securities Legend set forth in Section 2.3(a)(i)
until such time as such Restricted Securities Legend may be removed
in
accordance with Section 2.3.
(b) Agent Members shall have no rights
under this Indenture with respect
to any Global Note held on their behalf by the Depositary, or
the
Trustee as its custodian, or under such Global Note, 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
Note
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 Note.
(c) The registered Holder of a Global
Note 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 Notes.
(d) A Global Note 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
Note
may be transferred in accordance with the rules and procedures of
the
Depositary and the provisions of Section 2.17 hereof.
(e) If at any time:
(i) the Depositary notifies the
Company in writing that it is no longer
willing or able to continue to act as Depositary for the Global
Notes,
or the Depositary ceases to be a "clearing agency" registered
under
the Exchange Act and a successor depositary for the Global Notes
is
not appointed by the Company within 90 days of such notice or
cessation;
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(ii) the
Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of the Physical Notes under this
Indenture in exchange for all or any part of the Notes represented
by
a Global Note or Global Notes; or
(iii) an Event
of Default has occurred and is continuing and the Registrar
has received a request from the Depositary for the issuance of
Physical Notes in exchange for such Global Note or Global
Notes,
then the Depositary shall surrender such Global Note or Global
Notes
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 Notes, shall authenticate
and
deliver in exchange for such Global Note or Global Notes,
Physical
Notes in an aggregate principal amount equal to the aggregate
principal amount of such Global Note or Global Notes. Such
Physical
Notes shall be registered in such names as the Depositary shall
identify in writing as the beneficial owners of the Notes
represented
by such Global Note or Global Notes (or any nominee thereof).
(f) Notwithstanding the foregoing, in
connection with any transfer of
beneficial interests in a Global Note 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 Note in an amount equal to the aggregate
principal amount of the beneficial interest in such Global Note to
be
transferred.
Section 2.9.
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 2.10.
Persons Deemed Owners.
Prior to due
presentment of a Note 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 Note is
registered as the owner of such Note for the
purpose of receiving payment of principal
of the Note or the payment of any
Redemption Price or Repurchase Price in
respect thereof and any Interest and
Additional Interest thereon, for any
purpose under this Indenture, whether or
not such Note 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 2.11.
Mutilated, Destroyed, Lost or Stolen Notes.
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If any mutilated
Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate
and deliver in exchange therefor a
new Note of like tenor and aggregate
principal amount and bearing a number not
contemporaneously outstanding.
If there is
delivered to the Company and the Trustee
(a) evidence to their satisfaction of
the destruction, loss or theft of
any Note, and
(b) such security or indemnity as may
be required by them to save each of
them and any agent of either of them harmless, then, in the absence
of
actual notice to the Company or the Trustee that such Note 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 Note, a new Note of like tenor
and
principal amount, and bearing a number not contemporaneously
outstanding.
In case any such
mutilated, destroyed, lost or stolen Note 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 Note, pay such Note, upon
satisfaction of the condition set forth in
the preceding paragraph.
Upon the
issuance of any new Note 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 Note
issued pursuant to this Section 2.11 in lieu of any
destroyed, lost or stolen Note shall
constitute an original contractual
obligation of the Company, whether or not
the destroyed, lost or stolen Note
shall be at any time enforceable by anyone,
and such new Note shall be entitled
to all the benefits of this Indenture
equally and proportionately with any and
all other Notes duly issued hereunder.
The provisions
of this Section 2.11 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 Notes.
Section 2.12.
Treasury Notes.
In determining
whether the Holders of the requisite principal amount of
Outstanding Notes have given any request,
demand, authorization, direction,
notice, consent or waiver hereunder, Notes
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 request, demand, authorization,
direction, notice, consent or waiver, only
such Notes of which the Trustee has
received written notice and are so owned
shall be so disregarded.
Section 2.13.
Temporary Notes.
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Pending the
preparation of Notes in definitive form, the Company may
execute and the Trustee shall, upon written
request of the Company, authenticate
and deliver temporary Notes (printed or
lithographed). Temporary Notes shall be
issuable in any authorized denomination,
and substantially in the form of the
Notes in definitive form but with such
omissions, insertions and variations as
may be appropriate for temporary Notes, all
as may be determined by the Company.
Every such temporary Note 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 Notes in
definitive form. Without unreasonable
delay, the Company will execute and deliver
to the Trustee Notes in definitive
form (other than in the case of Notes in
global form) and thereupon any or all
temporary Notes (other than any such Notes
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 Notes an equal principal
amount of Notes in definitive form. Such
exchange shall be made by the Company at
its own expense and without any charge
therefor. Until so exchanged, the temporary
Notes shall in all respects be
entitled to the same benefits and subject
to the same limitations under this
Indenture as Notes in definitive form
authenticated and delivered hereunder.
Section 2.14.
Cancellation.
All Notes
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 Notes so delivered shall be
canceled promptly by the Trustee, and no
Notes 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 Notes
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 Notes, such acquisition shall not
operate as a redemption or satisfaction of
the Indebtedness represented by such Notes
unless the same are delivered to the
Trustee for cancellation.
Section 2.15.
CUSIP Numbers.
The Company in
issuing the Notes 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 Notes or as contained in any
such notice and that reliance may be
placed only on the other identification
numbers printed on the Notes, 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 2.16.
Defaulted Interest.
If the Company
fails to make a payment of Principal of or Interest and
Additional Interest, if any, on any Note
when due and payable, it shall pay such
Interest on such amounts (to the extent
lawful), which shall be calculated using
the applicable Interest Rate (such amounts,
the "DEFAULTED INTEREST"). It may
elect to pay such Defaulted Interest, plus
any other Interest payable on it, to
the Persons who are Holders on which the
Interest is due on a subsequent special
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record date. The Company shall notify the
Trustee in writing of the amount of
Defaulted Interest the Company proposes to
pay on each such Note. 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.
Section 2.17.
Transfer Provisions.
Unless a Note 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 Notes:
(a) Transfer of
Notes.
The following
provisions shall apply with respect to the registration of
any proposed transfer of Notes to a
QIB:
(i) If the Notes to be transferred
consist of a beneficial interest in the
Global Notes, the transfer of such interest may be effected
only
through the book-entry systems maintained by the Depositary.
(ii) If the
Notes to be transferred consist of Physical Notes, 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 Note 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 Note stating or has
otherwise advised the Company and the Registrar in writing
that:
(A) it is purchasing the Notes 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;
(B) it and any such account is a QIB
within the meaning of Rule 144A;
(C) it is aware that the sale to it is
being made in reliance on Rule
144A;
(D) 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
(E) 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 Notes in an amount equal
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to the aggregate principal amount of the
Physical Notes to be transferred, and
the Trustee shall cancel the Physical Notes
so transferred.
(b) Other
Exchanges.
In the event
that Global Notes are exchanged for Notes in definitive
registered form pursuant to Section 2.7
prior to the effectiveness of a Shelf
Registration Statement with respect to such
Notes, such Notes 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.
(c) General.
By its
acceptance of any Note or shares of Common Stock issuable upon
conversion of the Notes bearing the
Restricted Securities Legend, each Holder of
such Note or shares of Common Stock
acknowledges the restrictions on transfer of
such Note or shares of Common Stock set
forth in this Indenture and agrees that
it will transfer such Note and such Common
Stock only as provided in this
Indenture. The Registrar shall not register
a transfer of any Note unless such
transfer complies with the restrictions on
transfer of such Note 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 Notes,
each Holder agrees by its acceptance of the
Notes 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.
The Registrar
shall retain copies of all certifications, letters, notices
and other written communications received
pursuant to Section 2.8 hereof or this
Section 2.17 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.
ARTICLE 3
DISCHARGE OF INDENTURE
Section 3.1.
Discharge of Liability on Notes.
When (a) the
Company delivers to the Trustee all Outstanding Notes (other
than Notes replaced pursuant to Section
2.11) for cancellation, (b) all
Outstanding Notes have become due and
payable at their scheduled maturity within
one year or all Outstanding Notes are
scheduled for redemption within one year
and the Company deposits with the Trustee
cash and, in the event of possible
conversions pursuant to Article 12, Common
Stock, sufficient to pay all amounts
due and owing on, and to satisfy all other
obligations of the Company with
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respect to, all Outstanding Notes on or
before the date of their scheduled
maturity or the scheduled date of
redemption (other than Notes replaced pursuant
to Section 2.11) or (c) when no Notes are
Outstanding, and if in any such 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 Notes 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 fails to convert Notes
into shares of its Common Stock in
accordance with the provisions of Article 12;
(b) the Company defaults in the
payment of the Principal amount (a
"DEFAULTED PAYMENT") on any Outstanding Note when the same becomes
due
and payable at its Stated Maturity, upon redemption, upon exercise
of
a Purchase Right, upon declaration when due for purchase by the
Company or otherwise, including any Make Whole Premium, if any,
in
connection with any conversion or repurchase;
(c) the Company defaults in the
payment of Interest and Additional
Interest, if any, on any Note when it becomes due and payable and
such
default continues for a period of 30 days;
(d) the Company fails to provide
notice of the occurrence of a Change of
Control on a timely basis;
(e) the Company or any Restricted
Subsidiaries of the Company fails to
perform or observe any other term, covenant or agreement contained
in
the Notes 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
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or to the Company and the Trustee by the Holders of at least 25%
in
aggregate principal amount of the Outstanding Notes;
(f) a default occurs under any
Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries that is a
Significant
Subsidiary or any group of two or more Restricted 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 $10 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 Notes, which default (i) is caused a failure to pay
when
due principal or premium of 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
because of a default with respect to such Indebtedness without
such
Indebtedness having been discharged or such non-payment or
acceleration having been cured, waived, rescinded or annulled;
(g) the entry by a court having
jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any of
its
Restricted Subsidiaries that is a Significant Subsidiary or any
group
of two or more Restricted 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 (ii) a decree
or
order adjudging the Company or any of its Restricted Subsidiaries
that
is a Significant Subsidiary or any group of two or more
Restricted
Subsidiaries that, taken as a whole, would constitute a
Significant
Subsidiary, a bankrupt or insolvent, or approving as properly filed
a
petition seeking reorganization, arrangement, adjustment or
37
<PAGE>
composition of or in respect of the Company or any of its
Restricted
Subsidiaries that is a Significant Subsidiary or any group of two
or
more Restricted Subsidiaries that, taken as a whole, would
constitute
a Significant Subsidiary, 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; or
(h) the commencement by the Company or
any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of two or more
Restricted Subsidiaries that, taken as a whole, would constitute
a
Significant Subsidiary, of a voluntary case or proceeding under
any
applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law, 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 in the context of a bankruptcy, insolvency or
reorganization
proceeding, 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 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.
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 Notes 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 a Responsible Officer becoming aware
of the occurrence of a Default, give to the
Holders 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, its
status and what action the Company is
taking or proposes to take with respect
thereto; 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 on
any of the Notes when due or in the
payment of any redemption or Purchase
Right.
Section 4.2.
Acceleration of Maturity; Rescission and Annulment.
If an Event of
Default with respect to Outstanding Notes (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 principal amount of
the Outstanding Notes, by written notice to
the Company, may declare due and
payable 100% of the principal amount of all
Outstanding Notes, plus any accrued
and unpaid Interest and Additional Interest
to the date of payment. Upon a
declaration of acceleration, such Principal
amount and accrued and unpaid
Interest and Additional 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
and Additional Interest, if any, on
the Outstanding Notes shall become and be
immediately due and payable, without
any declaration or other act on the part of
the Trustee or any Holder.
The Holders of
not less than a majority of the principal amount of the
Outstanding Notes, may, through notice to
the Trustee on behalf of the Holders
of all of the Notes, rescind and annul an
acceleration and its consequences
(including waiver of any defaults) if:
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(a) all existing Events of Default,
other than the nonpayment of a
Defaulted Payment on the Notes which have become due solely because
of
the acceleration, have been remedied, cured or waived, and
(b) the rescission would not conflict
with any judgment or decree of a
court of competent jurisdiction;
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.
Section 4.3.
Other Remedies.
If an Event of
Default with respect to Outstanding Notes 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 and Additional Interest,
if any, due and payable on the Notes or to
enforce the performance of any
provision of the Notes.
The Trustee may
maintain a proceeding in which it may prosecute and enforce
all rights of action and claims under this
Indenture or the Notes, even if it
does not possess any of the Notes or does
not produce any of them in the
proceeding.
Section 4.4.
Waiver of Past Defaults.
The Holders,
through the written consent of not less than a majority of the
principal amount of the Outstanding Notes,
may, on behalf of the Holders of all
of the Notes, waive an existing Default or
Event of Default, except a Default or
Event of Default:
(a) set forth in Sections 4.1(b) and
(c), provided, however, that subject
to Section 4.7, the Holders of a majority of the principal amount
of
the Outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted
from
such acceleration; or
(b) 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 Note affected.
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
no such waiver shall extend to any
subsequent or other Default or impair any
right consequent thereon.
Section 4.5.
Control by Majority.
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The Holders of a
majority of the principal amount of the Outstanding Notes
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:
(a) conflicts with any law or with
this Indenture;
(b) the Trustee determines may be
unduly prejudicial to the rights of the
Holders not joining therein; or
(c) 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 shall
have any right to pursue any remedy with respect to this
Indenture or the Notes (including,
instituting any proceeding, judicial or
otherwise, with respect to this Indenture
or for the appointment of a receiver
or trustee) unless:
(a) such Holder has previously given
written notice to the Trustee of an
Event of Default that is continuing;
(b) the Holders of at least 25% of the
principal amount of the Outstanding
Notes shall have made written request to the Trustee to pursue
the
remedy;
(c) 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;
(d) the Trustee has failed to comply
with the request for 60 days after
its receipt of such notice, request and offer of indemnity; and
(e) 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 Notes;
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
Note shall have the right, which is
absolute and unconditional, to receive
payment of the Principal on and Interest
and Additional Interest, if any, in
respect of the Notes held by such Holder,
on or after the respective due dates,
to convert the Notes in accordance with
Article 12 or to bring suit for the
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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.
Section 4.8.
Collection of Indebtedness and Suits for Enforcement by the
Trustee.
The Company
covenants that if:
(a) a Default or Event of Default is
made in the payment of Interest and
Additional Interest, if any, on any Note when such Interest and
Additional Interest, if any, becomes due and payable and such
Default
or Event of Default continues for a period of 30 days; or
(b) a Default or Event of Default is
made in the payment of the Principal
on any Note 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 Notes, 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 Notes for any
such amounts and, to the extent
legally enforceable, Interest or Additional
Interest, if any, on such Notes,
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 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
