SECOND SUPPLEMENTAL INDENTURE

Exhibit 4.8

EXECUTION VERSION

SMITHFIELD FOODS, INC.

AND

U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE

4.00% Convertible Senior Notes due 2013

SECOND SUPPLEMENTAL INDENTURE

Dated as of July 8, 2008

TABLE OF CONTENTS

 

 

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CROSS-REFERENCE TABLE

 

N.A.	means Not Applicable.

 

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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Supplemental Indenture.

 

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SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 8, 2008, between SMITHFIELD FOODS, INC., a corporation duly organized and existing under the laws of the Commonwealth of Virginia (the “Company”), and U.S. Bank National Association, a national banking association duly organized and existing under the laws of the United States of America and having a corporate trust office in Atlanta, Georgia (the “Trustee”), as Trustee.

RECITALS OF THE COMPANY

WHEREAS, the Company deems it necessary to issue from time to time for its lawful purposes senior debt securities evidencing its unsecured and unsubordinated indebtedness, which may or may not be convertible into or exchangeable for any securities of any Person (including the Company);

WHEREAS, the Company has for such purposes heretofore entered into an Indenture, dated as of June 1, 2007, with the Trustee (the “Original Indenture,” and collectively with the First Supplemental Indenture, dated as of June 22, 2007, between the Company and the Trustee (the “First Supplemental Indenture”) and this Supplemental Indenture and as may be further amended and supplemented from time to time, the “Indenture”);

WHEREAS, the Original Indenture is incorporated herein by this reference;

WHEREAS, the Indenture provides for the issuance from time to time of new series of securities, unlimited as to principal amount, to bear such rates of interest, to mature at such times and to have such other provisions as shall be fixed in accordance with the provisions of the Indenture, and the terms of such series may be described by a supplemental indenture executed by the Company and the Trustee;

WHEREAS, pursuant to Section 301 of the Original Indenture, the Company wishes to provide for the issuance of a new series of Securities to be known as its 4.00% Convertible Senior Notes due 2013 (the “Securities”), the form and terms of such Securities and the terms, provisions and conditions thereof to be set forth as provided in this Supplemental Indenture;

WHEREAS, this Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions; and

WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company, and a valid amendment and supplement to the Original Indenture, have been done.

NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of the Holders of the series of Securities established hereby, as follows:

ARTICLE 1

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.01. Relation to Original Indenture . The Original Indenture, as supplemented by the First Supplemental Indenture and this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed an integral part of the Original Indenture in the manner and to the extent herein and therein provided. In the event that conflict arises between the terms of the Original Indenture and the terms of this Supplemental Indenture, the terms of this Supplemental Indenture shall be controlling and supersede such conflicting terms of the Original Indenture. Unless otherwise specifically modified or amended hereby, the terms of the Original Indenture shall in full force and effect with respect to the Securities.

Section 1.02.  Definitions .

(a) For all purposes of this Supplemental Indenture and any Securities issued hereunder:

(i) Capitalized terms used herein without definition shall have the meanings specified in the Original Indenture;

(ii) Each reference to “Indenture” in this Supplemental Indenture shall mean the provisions of the Original Indenture and future amendments and supplements to the Original Indenture, including this Supplemental Indenture, applicable to the Securities and exclusive of amendments and supplements that relate to future issuances of other series of securities issued at a later date under the Indenture;

(iii) All references in this Supplemental Indenture to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture and, where so specified, to the Articles and Sections of the Original Indenture as supplemented, amended or modified by this Supplemental Indenture;

(iv) All references in the Original Indenture to Articles and Sections in the Original Indenture shall for purposes of the Securities be deemed references to the Articles and Sections of the Original Indenture as supplemented, amended or modified by this Supplemental Indenture, including a deemed reference to a different section number in this Supplemental Indenture that supplements, amends or modifies a Section in the Original Indenture; and

(v) The terms “above,” “below,” “hereof,” “herein,” “hereby,” “hereto,” “hereunder” and “herewith” in this Supplemental Indenture refer to this Supplemental Indenture.

 

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(b) For all purposes of this Supplemental Indenture, the following terms shall have the following definitions and shall supersede any such definitions of the same terms in the Original Indenture:

“ Additional Interest ” means all amounts, if any, payable pursuant to Section 5.02.

“ Additional Shares ” has the meaning ascribed to it in Section 9.03(a).

“ Adjustment Event ” has the meaning ascribed to it in Section 9.02(k).

“ Agent Member, ” or Agent Members has the meaning ascribed to it in Section 2.06.

“ Beneficial Owner ” shall mean any person who is considered a beneficial owner of a security in accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act.

“ Business Day ” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York or Atlanta, Georgia is closed.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Common Stock ” means the common stock, par value $0.50 per share, of the Company existing on the Issue Date or any other shares of capital stock into which such common stock shall be reclassified or changed.

“ Company ” means Smithfield Foods, Inc.

“ Company Notice ” has the meaning ascribed to it in Section 8.02(a).

“ Company Notice Date ” has the meaning ascribed to it in Section 8.02(a).

“ Conversion Agent ” means the office or agency appointed by the Company where Securities may be presented for conversion. The Conversion Agent appointed by the Company shall initially be the Trustee.

“ Conversion Date ” means the date of conversion of any Holder’s Securities pursuant to Section 9.01(b).

“ Conversion Payment Trading Day ” shall mean a day on which (i) there is no Market Disruption Event and (ii) trading generally in the Common Stock (or other security for which a Daily VWAP must be determined) occurs on the New York Stock Exchange or, if the Common Stock (or other security for which a Daily VWAP must be determined) is not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock (or other security for which a Daily VWAP must be determined) is then listed or, if the Common Stock (or other security for which a Daily VWAP must be determined) is not then listed on a U.S. national or regional securities exchange, in the principal other market on which the Common Stock (or other security for which a Daily VWAP must be determined) is then traded. If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or traded, “Conversion Payment Trading Day” means a “Business Day”.

 

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“ Conversion Price ” means, in respect of each $1,000 principal amount of Securities, $1,000 divided by the Conversion Rate, as may be adjusted from time to time as set forth herein.

“ Conversion Rate ” means, in respect of each $1,000 principal amount of Securities, initially 44.0820 shares of Common Stock, subject to adjustments as set forth herein.

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

“ Daily Conversion Value ” means, for each of the 40 consecutive Trading Days during the Observation Period, 1/40th of the product of (1) the applicable Conversion Rate and (2) the Daily VWAP of the Common Stock (or the consideration into which the Common Stock has been converted in connection with transactions to which Section 9.04 is applicable) on such day.

“ Daily Settlement Amount ”, for each of the 40 Trading Days during the Observation Period, shall consist of:

(i) cash equal to the lesser of $25 and the Daily Conversion Value; and

(ii) to the extent the Daily Conversion Value exceeds $25, a number of shares of Common Stock (the “Maximum Deliverable Shares”) equal to (A) the difference between the Daily Conversion Value and $25, divided by (B) the Daily VWAP for the Common Stock (or the consideration into which the Common Stock has been converted in connection with transactions to which Section 9.04 is applicable) for such day.

“ Daily VWAP ” for the Common Stock (or other security for which a Daily VWAP must be determined) means, for each of the 40 consecutive Trading Days during the Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “SFD.N <equity> AQR” (or its equivalent successor if such page is not available or the equivalent page for such other security as determined by the Company) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock (or other security for which a Daily VWAP must be determined) on such Trading Day as determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for such purpose by the Company). Daily VWAP will be determined without regard to after hours trading or any other trading outside of the regular trading session hours.

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

“ Defaulted Interest ” has the meaning ascribed to it in Section 2.07.

“ Definitive Securities ” means certificated Securities that are not Global Securities.

 

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“ Determination Date ” has the meaning ascribed to it in Section 9.02(k).

“ DTC ” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company pursuant to the terms of this Supplemental Indenture.

“ Effective Date ” means the date on which the Fundamental Change occurs or becomes effective.

“ Event of Default ” has the meaning ascribed to it in Section 5.02.

“ Ex-Dividend Date ” means the first date upon which a sale of the Common Stock does not automatically transfer the right to receive the relevant dividend, issuance or distribution from the seller of the Common Stock to its buyer.

“ Expiration Time ” has the meaning ascribed to it in Section 9.02(e).

“ First Supplemental Indenture ” has the meaning ascribed to it in the recitals of this Supplemental Indenture.

A “ Fundamental Change ” shall be deemed to have occurred at the time after the Securities are originally issued that any of the following occurs:

(1) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act other than the Company, any Subsidiary of the Company or any employee benefit plans of the Company or a Subsidiary of the Company files a Schedule 13D or Schedule TO (or any successor schedule, form or report) pursuant to the Exchange Act disclosing that such person has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s common equity representing more than 50% of the voting power of all shares of the Company’s common equity entitled to vote generally in the election of directors of the Company, unless such beneficial ownership arises as a result of a revocable proxy delivered in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act; and provided, that no person or group shall be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or group until such tendered securities are accepted for purchase or exchange under such offer; or

(2) consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets or (B) any statutory share exchange, consolidation or merger involving the Company pursuant to which the Common Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries, taken as a whole, to any person other than one or more of the Company’s Subsidiaries, other than any transaction:

(I) involving a consolidation or merger that does not result in a reclassification, conversion, exchange or cancellation of the outstanding Common Stock; or

 

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(II) that is effected solely to change the Company’s jurisdiction of incorporation and results in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving entity;

(3) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office;

(4) the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or

(5) the first day on which the Common Stock (or other capital stock into which the Securities are then convertible pursuant to the terms of this Supplemental Indenture) ceases to be listed on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market;

provided , that a Fundamental Change as a result of clause (1) or (2) above will not be deemed to have occurred, however, if 100% of the consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in connection with the transaction or transactions constituting the Fundamental Change consists of shares of capital stock traded on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global Select Market or which will be so traded when issued or exchanged in connection with the transaction that would otherwise be a Fundamental Change (these securities being referred to as “Publicly Traded Securities”) and as a result of this transaction or transactions the Securities become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares, pursuant to the terms of this Supplemental Indenture.

“ Fundamental Change Purchase Date ” has the meaning ascribed to it in Section 8.01.

“ Fundamental Change Purchase Notice ” has the meaning ascribed to it in Section 8.01.

“ Fundamental Change Purchase Price ” has the meaning ascribed to it in Section 8.01.

“ Global Securities ” means certificated Securities in global form, without interest coupons, substantially in the form of Exhibit A hereto and registered in the name of DTC.

“ Indenture ” has the meaning ascribed to it in the recitals of this Supplemental Indenture.

 

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“ Issue Date ” means July 8, 2008.

“ Last Reported Sale Price ” of the Common Stock on any Trading Day means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) of the Common Stock on that Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant Trading Day, the Last Reported Sale Price will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant Trading Day as reported by Pink Sheets LLC or similar organization selected by the Company. If the Common Stock is not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for such purpose.

“ Market Disruption Event ” means (i) a failure by the primary U.S. national or regional securities exchange or other market on which the Common Stock (or other security for which a Daily VWAP must be determined) is listed or admitted to trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m., New York City time, on any Trading Day for the Common Stock (or other security for which a Daily VWAP must be determined) for an aggregate one half hour period of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock (or other security for which a Daily VWAP must be determined) or in any options, contracts or future contracts relating to the Common Stock (or other security for which a Daily VWAP must be determined).

“ Material Indebtedness ” is indebtedness (other than indebtedness under the Securities) of the Company in an aggregate principal amount exceeding $25,000,000.

“ Maximum Deliverable Shares ” is defined under the definition of “Daily Settlement Amount” in this Section 1.02.

“ Measurement Period ” has the meaning ascribed to it in Section 9.01(a)(ii).

“ Observation Period ” with respect to any Security surrendered for conversion means (i) for Securities with a Conversion Date occurring prior to the 45th Scheduled Trading Day immediately preceding June 30, 2013, the 40 consecutive Trading Day period beginning on, and including, the third Trading Day after the related Conversion Date; and (ii) for Securities with a Conversion Date occurring on or after the 45th Scheduled Trading Day immediately preceding June 30, 2013, the 40 consecutive Trading Days beginning on and including the 42nd Scheduled Trading Day immediately preceding June 30, 2013.

“ Original Indenture ” has the meaning ascribed to it in the recitals of this Supplemental Indenture.

“ Paying Agent ” has the meaning ascribed to it in Section 2.03.

 

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“ Prospectus ” means the prospectus, dated June 14, 2007, as supplemented by the prospectus supplement, dated July 1, 2008, relating to the offering by the Company of the Securities.

“ Publicly Traded Securities ” has the meaning provided in the definition of Fundamental Change in this Section 1.02.

“ Record Date ” means, in respect of a dividend or distribution to holders of Common Stock, the date fixed for determination of holders of Common Stock entitled to receive such dividend or distribution.

“ Reference Property ” has the meaning ascribed to it in Section 9.04(a).

“ Registrar ” has the meaning ascribed to it in Section 2.03.

“ Regular Record Date ” for the payment of interest on the Securities (including Additional Interest, if any), means the June 15 (whether or not a Business Day) next preceding an interest payment date on June 30 and the December 15 (whether or not a Business Day) next preceding an interest payment date on December 30.

“ Reorganization Event ” has the meaning ascribed to it in Section 9.04(a).

“ SEC ” means the U.S. Securities and Exchange Commission.

“ Securities ” has the meaning ascribed to it in the recitals of this Supplemental Indenture.

“ Securities Custodian ” means the custodian with respect to the Global Securities (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee.

“ Securities Register ” means the register of Securities, maintained by the Registrar, pursuant to Section 2.03.

“ Settlement Amount ” has the meaning as ascribed to it in Section 9.01(c).

“ Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading; provided that if the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a “Business Day.”

“ Special Interest Payment Date ” has the meaning ascribed to it in Section 2.07.

“ Special Record Date ” has the meaning ascribed to it in Section 2.07.

“ Spin-Off ” has the meaning ascribed to it in Section 9.02(c).

“ Stated Maturity ” means June 30, 2013.

“ Stock Price ” means, with respect to a Fundamental Change, the price per share of Common Stock paid in connection with such Fundamental Change, which shall be equal to (i) if

 

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such Fundamental Change is a transaction set forth in clause (1) or (2) of the definition thereof, and holders of Common Stock receive only cash in such Fundamental Change, the cash amount paid per share of Common Stock and (ii) in all other cases, the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Effective Date.

“ Successor Company ” has the meaning ascribed to it in Section 4.02(a).

“ Supplemental Indenture ” has the meaning ascribed to it in the first paragraph of this Supplemental Indenture.

“ TIA ” stands for Trust Indenture Act of 1939, as amended.

“ Trading Day ” means a day during which trading in securities generally occurs on the principal U.S. national or regional securities exchange on which the Common Stock is then listed or admitted for trading or, if the Common Stock is not then listed or admitted for trading on a U.S. national or regional securities exchange, in the principal other market on which the Common Stock is then traded; provided that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a “Business Day.”

“ Trading Price ” of the Securities on any date of determination means the average of the secondary market bid quotations obtained by the Trustee for $5,000,000 principal amount of the Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that, if three such bids cannot reasonably be obtained by the Trustee but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Securities from any of such nationally recognized securities dealers on any day during the Measurement Period, then the Trading Price per $1,000 principal amount of Securities on such day will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If the Company does not so instruct the Trustee to obtain bids when required, the Trading Price per $1,000 principal amount of the Securities will be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each day the Company has failed to do so.

“ Trustee ” means U.S. Bank National Association.

“ Trust Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and having direct responsibility for the administration of this Supplemental Indenture.

Section 1.03.  Incorporation by Reference of Trust Indenture Act . This Supplemental Indenture is subject to the mandatory provisions of the TIA which are incorporated by reference in and made a part of this Supplemental Indenture. The following TIA terms have the following meanings:

“Commission” means the Securities and Exchange Commission.

 

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“indenture securities” means the Securities.

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

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

Section 1.04.  Rules of Construction . Unless the context otherwise requires:

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

(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3) “or” is not exclusive;

(4) “including” means including without limitation;

(5) words in the singular include the plural and words in the plural include the singular;

(6) unsecured Indebtedness shall not be deemed to be subordinate or junior to Secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;

(7) the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP; and

(8) the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater.

ARTICLE 2

THE SECURITIES

Section 2.01.  Title; Amount and Issue of Securities; Principal and Interest .

(a) The Securities shall be known and designated as the “4.00% Convertible Senior Notes due 2013” of the Company. The aggregate principal amount of Securities which may be authenticated and delivered under this Supplemental Indenture is initially limited to $400,000,000, except for Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of other Securities pursuant to Sections 303, 304, 305 or 306 of the

 

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Original Indenture or Sections 2.01(b), 7.03, 7.06, or 9.01 of this Supplemental Indenture; provided that additional Securities may be issued in an unlimited aggregate principal amount from time to time thereafter as set forth pursuant to Section 2.01(b) of this Supplemental Indenture. The Securities shall be issuable in denominations of $1,000 or integral multiples thereof.

(b) At any time and from time to time after the execution and delivery of this Supplemental Indenture, the Company may deliver Securities executed by the Company in an unlimited aggregate principal amount to the Trustee for authentication in accordance with Section 303 of the Original Indenture, and the Trustee in accordance with Section 303 of the Original Indenture and any Company Order shall authenticate and deliver such Securities as in the Indenture provided and not otherwise. All Securities issued on the Issue Date shall be identical in all respects with any such Securities authenticated and delivered thereafter, other than issue prices, issue dates, the date from which interest accrues or other identifying notations and any changes relating thereto. Notwithstanding anything to the contrary contained in this Supplemental Indenture, all Outstanding Securities issued under this Supplemental Indenture shall vote and consent together on all matters as one class and no Outstanding Securities issued under this Supplemental Indenture will have the right to vote or consent as a separate class on any matter.

(c) The Securities shall mature on June 30, 2013.

(d) Interest on the Securities shall accrue from and including the date specified on the face of such Securities until the principal thereof is paid or made available for payment. Interest shall be payable semi-annually in arrears on and June 30 and December 30 in each year, commencing December 30, 2008. If any interest payment date falls on a day that is not a Business Day, such interest payment date shall be postponed to the next succeeding Business Day and no interest on such payment will accrue for the period from the interest payment date to such next succeeding Business Day. If the Stated Maturity would fall on a day that is not a Business Day, the required payment of interest, if any, and principal (and Additional Interest, if any), will be made on the next succeeding Business Day and no interest on such payment will accrue for the period from and after the Stated Maturity to such next succeeding Business Day. If a Fundamental Change Purchase Date would fall on a day that is not a Business Day, the Company will purchase the Securities tendered for purchase on the next succeeding Business Day and no interest or Additional Interest on such Securities will accrue for the period from and after the earlier Fundamental Change Purchase Date to such next succeeding Business Day. The Company will pay the Fundamental Change Purchase Price promptly following the later of (i) such next succeeding Business Day or (ii) the time of book entry transfer or the delivery of the Securities as set forth in Section 8.01(c) hereof.

(e) A Holder of any Security after 5:00 p.m., New York City time, on a Regular Record Date shall be entitled to receive interest (including any Additional Interest), on such Security on the corresponding interest payment date. If Securities are surrendered for conversion at any time after 5:00 p.m., New York City time, on a Regular Record Date and prior to 9:00 a.m., New York City time, on the corresponding interest payment date, Holders of such Securities at 5:00 p.m., New York City time, on such Regular Record Date shall receive the accrued but unpaid interest payable on such Securities on the corresponding interest payment

 

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date notwithstanding the conversion. In such event, such Security, when surrendered for conversion, must be accompanied by delivery of payment, in the manner specified by the Conversion Agent, to the Conversion Agent in an amount equal to the accrued but unpaid interest payable on such interest payment date on the Securities so converted. If such payment does not accompany such Security, the Security shall not be converted; provided that no such payment shall be required (i) for conversions of any Security with a Conversion Date on or after June 15, 2013, (ii) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding interest payment date, or (iii) to the extent of any overdue interest (including any overdue Additional Interest) existing at the time of conversion with respect to the Securities converted. If the Company defaults in the payment of interest payable on the interest payment date, the Conversion Agent shall promptly repay such funds to the Holder. Except where Securities surrendered for conversion must be accompanied by payment as described above, no interest or Additional Interest on converted Securities will be payable by the Company on any interest payment date subsequent to the Conversion Date and delivery of the cash and shares of Common Stock, if applicable, pursuant to Article 9 hereunder, together with any cash payment for any fractional share, upon conversion will be deemed to satisfy the Company’s obligation to pay the principal amount of the Securities and accrued and unpaid interest and Additional Interest, if any, to, but not including, the related Conversion Date.

(f) Principal of and interest (including Additional Interest, if any) on, Global Securities shall be payable to DTC in immediately available funds.

(g) Principal on Definitive Securities shall be payable at the office or agency of the Company maintained for such purpose, initially the agency of the Trustee at the U.S. Bank National Association, 100 Wall Street, 16th Floor, New York, New York 10005.

Interest (including Additional Interest, if any), on Definitive Securities will be payable (i) to each Holder of Securities having an aggregate principal amount of $5,000,000 or less, by check mailed to such Holder and (ii) to each Holder of Securities having an aggregate principal amount of more than $5,000,000, either by check mailed to such Holder or, upon application by such Holder to the Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application shall remain in effect until the Holder notifies, in writing, the Registrar to the contrary.

Section 2.02.  Form of Securities .

(a) Except as otherwise provided pursuant to this Section 2.02, the Securities are issuable in fully registered form without coupons in substantially the form of Exhibit A hereto, with such applicable legend as is provided for in Section 205 of the Original Indenture. The Securities are not issuable in bearer form. The terms and provisions contained in the form of Security shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and to the extent applicable, the Company and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. Any of the Securities may have such letters, numbers or other marks of identification and such notations, legends and endorsements as the Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Supplemental Indenture, or as may be required to comply with any law or with

 

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any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Securities may be listed or designated for issuance, or to conform to usage.

(b) The Securities shall be issued initially in the form of one or more permanent Global Securities, with the applicable legend as provided in Section 205 of the Original Indenture. Each Global Security shall be duly executed by the Company and authenticated and delivered by the Trustee, and shall be registered in the name of DTC and retained by the Trustee, as Securities Custodian, at its Corporate Trust Office, for credit to the accounts of the Agent Members holding the Securities evidenced thereby. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Securities Custodian, and of DTC, as hereinafter provided.

Section 2.03.  Registrar and Paying Agent . The Company shall maintain an office or agency where Securities may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities may be presented for payment (the “Paying Agent”). The Company shall cause each of the Registrar and the Paying Agent to maintain an office or agency in New York City, New York. The Registrar shall keep a register of the Securities and of their transfer and exchange (the “Securities Register”). The Company may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any co-registrar.

The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Supplemental Indenture, which shall incorporate the terms of the TIA, except in the case of a Paying Agent that acts as Paying Agent solely in connection with an offer to purchase the Securities pursuant to Article 8 of this Supplemental Indenture. The agreement shall implement the provisions of this Supplemental Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 607 of the Original Indenture. The Company or any of its domestically organized, wholly owned Subsidiaries may act as Paying Agent, Registrar, or transfer agent.

The Company initially appoints the Trustee as Registrar and Paying Agent for the Securities. The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or successor Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee or the Company shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee.

Section 2.04.  Paying Agent to Hold Money in Trust . By no later than 11:00 a.m., New York City time, on the date on which any principal of or interest and Additional Interest, if any, on any Security is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal or interest (including any

 

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Additional Interest), when due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest (including any Additional Interest), on the Securities and shall notify the Trustee in writing of any Default by the Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.04, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the Securities.

Section 2.05.  General Provisions Relating to Transfer and Exchange .

(a) Section 305 of the Original Indenture shall not apply to the Securities and hereafter shall be void and of no force and effect except solely with respect to any other series of securities issued under the Indenture; and, insofar as relating to the Securities, any reference to Section 305 in the Original Indenture shall instead be deemed to refer to Section 2.05 of this Supplemental Indenture.

(b) The Securities are issuable only in registered form. A Holder may transfer a Security only by written application to the Registrar stating the name of the proposed transferee and otherwise complying with the terms of this Supplemental Indenture. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Registrar in the Securities Register. Furthermore, any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book-entry system maintained by the Holder of such Global Security (or its agent) and that ownership of a beneficial interest in the Global Security shall be required to be reflected in a book-entry.

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

Neither the Company nor the Registrar shall be required to exchange or register a transfer of any Securities surrendered for conversion or, if a portion of any Security is surrendered for conversion, the portion thereof surrendered for conversion.

 

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

Section 2.06.  Book-Entry Provisions for the Global Securities . (a) The Global Securities initially shall:

(i) be registered in the name of DTC;

(ii) be delivered to the Trustee as Securities Custodian for DTC;

(iii) bear the legend set forth in Section 205 of the Original Indenture.

Members of, or participants in, DTC (“Agent Members”) shall have no rights under this Supplemental Indenture with respect to any Global Security held on their behalf by DTC, or the Trustee as its custodian, or under such Global Security, and DTC may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing contained herein shall prevent the Company, the Trustee or any agent of the Company or Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and the Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.

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

(c) A Global Security may not be transferred, in whole or in part, to any Person other than DTC, and no such transfer to any such other Person may be registered. Beneficial interests in a Global Security may be transferred in accordance with the rules and procedures of DTC, subject to any applicable state laws.

(d) If at any time:

(i) DTC notifies the Company in writing that it is unwilling or unable to continue to act as depositary for the Global Securities and a successor depositary for the Global Securities is not appointed by the Company within 90 days of such notice;

(ii) DTC ceases to be registered as a “clearing agency” under the Exchange Act and a successor depositary for the Global Securities is not appointed by the Company within 90 days of such cessation;

 

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

(iv) an Event of Default has occurred and is continuing and the Registrar has received a request from DTC for the issuance of Definitive Securities in exchange for such Global Security or Global Securities;

DTC shall surrender such Global Security or Global Securities to the Trustee for cancellation and the Company shall execute, and the Trustee, upon receipt of an Officers’ Certificate and Company Order for the authentication and delivery of Securities, shall authenticate and deliver in exchange for such Global Security or Global Securities, Definitive Securities in an aggregate principal amount equal to the aggregate principal amount of such Global Security or Global Securities. Such Definitive Securities shall be registered in such names as DTC shall identify in writing as the Beneficial Owners of the Securities represented by such Global Security or Global Securities (or any nominee thereof).

(e) Notwithstanding the foregoing, in connection with any transfer of beneficial interests in a Global Security to the Beneficial Owners thereof pursuant to Section 2.06(d), the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Security in an amount equal to the principal amount of the beneficial interests in such Global Security to be transferred.

(f) Neither the Company nor the Trustee, Paying Agent, Conversion Agent or Registrar shall have any responsibility or liability for maintaining, supervising or reviewing any records of DTC relating to any such Global Securities. Payments by Agent Members to Beneficial Owners, in connection with beneficial interests in a Global Security, will be governed by standing instructions and customary industry practice and will be the responsibility of those Agent Members. Neither the Company nor the Trustee, Paying Agent, Conversion Agent or Registrar shall have any responsibility or liability for the payment of amounts to Beneficial Owners of Global Securities, for any aspect of the records relating to or payments made on account of those Global Securities.

Section 2.07.  Payment of Interest; Defaulted Interest .

(a) Section 307 of the Original Indenture shall not apply to the Securities and hereafter shall be void and of no force and effect except solely with respect to any other series of securities issued under the Indenture; and, insofar as relating to the Securities, any reference to Section 307 in the Original Indenture shall instead be deemed to refer to Section 2.07 of this Supplemental Indenture.

(b) Interest (including any Additional Interest) on any Security which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Security (or one or more predecessor Securities) is registered at the close of business on the Regular Record Date for such payment as provided in Section 2.01.

 

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Any interest on any Security which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days, shall forthwith cease to be payable to the Holder on the Regular Record Date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Securities (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:

(i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date (not less than 30 days after such notice) of the proposed payment (the “Special Interest Payment Date”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a record date (the “Special Record Date”) for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the Special Interest Payment Date and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date, and in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 105 of the Original Indenture, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Securities (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii).

(ii) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Subject to the foregoing provisions of this Section 2.07, each Security delivered under this Supplemental Indenture upon registration of, transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest (including any Additional Interest) accrued and unpaid, and to accrue, which were carried by such other Security.

 

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ARTICLE 3

ADDITIONAL COVENANTS

Section 3.01.  Further Instruments and Acts . Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Supplemental Indenture.

Section 3.02.  Financial Statements .

(a) Section 704(1) of the Original Indenture shall not apply to the Securities and hereafter shall be void and of no force and effect except solely with respect to any other series of securities issued under the Indenture; and, insofar as relating to the Securities, any reference to Section 704 in the Original Indenture shall instead be deemed to refer to Section 3.02 of this Supplemental Indenture.

(b) In the event and for so long as the Company is not subject to Section 13 or 15(d) of the Exchange Act, it shall furnish, upon request, to any Holder of Securities or of any shares of Common Stock issued upon conversion of Securities, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act and it will take such further action as any such Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell its Securities or such Common Stock issued upon conversion of its Securities without registration under the Securities Act within the limitation of the exemption provided by Rule 144A, as such Rule may be amended from time to time.

(c) The Company shall file with the Trustee within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and information, documents and other reports (or copies of such portions of the foregoing as the Commission may prescribe) which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is not required to file information, documents or reports pursuant to either of those sections, then the Company shall provide to the Trustee such reports as may be prescribed to be filed by the Company by the Commission at such time. To the extent the Company has filed such information with the Commission through the Commission’s EDGAR system, or any successor system employed by the Commission, the Company shall be deemed to have complied with this Section 3.02(c).

(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

Section 3.03.  Additional Interest . Whenever in this Supplemental Indenture there is mentioned, in any context, the payment of the principal of or interest on, or in respect of, any Security, such mention shall be deemed to include mention of the payment of Additional Interest provided for in Section 5.03 hereof, in such context, Additional Interest is, was or would be payable in respect thereof pursuant to the provisions of the Securities and express mention of the payment of Additional Interest (if applicable) in any provisions hereof or thereof shall not be construed as excluding Additional Interest in those provisions hereof or thereof where such express mention is not made.

 

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If Additional Interest is payable by the Company pursuant to Section 5.03 hereof, the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and until a Trust Officer of the Trustee receives such a certificate, the Trustee may assume without inquiry that no Additional Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’ Certificate setting forth the particulars of such payment.

Section 3.04. Waiver of Stay or Extension of Law . The Company covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Supplemental Indenture; and the Company expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE 4

SUCCESSOR COMPANY

Section 4.01.  Original Indenture . Article VIII of the Original Indenture shall not apply to the Securities and hereafter shall be void and of no force and effect except solely with respect to any other series of securities issued under the Indenture; and, insofar as relating to the Securities, any reference to Article VIII in the Original Indenture shall instead be deemed to refer to Article 4 of this Supplemental Indenture.

Section 4.02.  Consolidation, Merger and Sale of Assets . The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, another Person, unless:

(a) the resulting, surviving or transferee Person (the “Successor Company”), if not the Company shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by supplemental indenture, executed and delivered to the Trustee, all the obligations of the Company under the Securities and the Indenture;

(b) immediately after giving effect to such transaction, no Default, Event of Default, or any event which after notice or lapse of time or both, would become an Event of Default shall have occurred and be continuing; and

(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with the Indenture.

 

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For purposes of this Section 4.02, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

The predecessor Company will be released from its obligations under the Indenture and the Securities, and the Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and the Securities, but, in the case of a lease of all or substantially all its assets, the predecessor Company will not be released from the obligation to pay the principal of and interest (including any Additional Interest) on the Securities.

In the case of a Subsidiary of the Company that merges with and into the Company, the Company will not be required to comply with Sections 4.02(b) or 4.02(c).

In case the Company, pursuant to this Article 4, shall be consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Company shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article 4, any of the Securities authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or other disposition may, from time to time, at the request of the successor Person, be exchanged for other Securities executed in the name of the successor Person with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Securities surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of the successor Person, shall authenticate and deliver Securities as specified in such order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of a successor Person pursuant to Section 2.01 of this Supplemental Indenture in exchange or substitution for or upon registration of transfer of any Securities, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Securities at the time outstanding for Securities authenticated and delivered in such new name.

ARTICLE 5

DEFAULTS AND REMEDIES

Section 5.01.  Original Indenture . Article V of the Original Indenture shall not apply to the Securities and hereafter shall be void and of no force and effect except solely with respect to any other series of securities issued under the Indenture; and, insofar as relating to the Securities, any reference to Article 5 in the Original Indenture shall instead be deemed to refer to Article 5 of this Supplemental Indenture.

Section 5.02.  Events of Default . Each of the following is an “Event of Default”:

(a) default in any payment of interest, including any Additional Interest, on any Security when the same becomes due and payable, and such default continues for a period of 30 days;

 

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(b) default in the payment of the principal of any Security when the same becomes due and payable at its Stated Maturity, upon required repurchase, upon declaration or otherwise;

(c) failure by the Company to comply with its obligation to convert the Securities in accordance with the Indenture upon exercise of a Holder’s conversion right and such failure continues for a period of five days;

(d) failure by the Company to give a Company Notice to Holders in the event of a Fundamental Change as required pursuant to Section 8.02(a) or notice to Holders required pursuant to Section 9.01(a)(iii), in each case when due;

(e) failure on the part of the Company to observe or perform any other of the covenants or agreements in respect of the Securities contained in the Indenture or under the Securities (other than those referred to in Section 5.02(a) through Section 5.02(d) above or Section 5.02(f) through Section 5.02(i) below) and such default continues for 90 days after the “notice of default,” as described below, has been given;

(f) default by the Company with respect to any Material Indebtedness, whether such Material Indebtedness now exists or shall hereafter be created, (i) resulting in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise become due and payable or (ii) constituting a failure to pay the principal of any such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration or otherwise; provided , that any event of default under either of the foregoing clauses (i) and (ii) shall be deemed cured and not to be continuing upon the payment of such indebtedness or the rescission or annulment of any acceleration of such indebtedness;

(g) the rendering of any judgment or decree for the payment of money in excess of $25.0 million or its foreign currency equivalent in the aggregate for all such final judgments or orders against the Company if (A) an enforcement proceeding thereon is commenced and not discharged within 10 days or (B) such judgment or decree remains outstanding for a period of 60 days following such judgment or decree and is not discharged, waived, stayed or bonded;

(h) the Company commences a voluntary case under any applicable Bankruptcy Law, or consents to the entry of an order for relief in an involuntary case under any Bankruptcy Law, or consents to the appointment or taking possession by a Custodian of the Company, or for all or substantially all its property, or makes any general assignment for the benefit of creditors;

(i) a court of competent jurisdiction enters a decree or order for relief in respect of the Company in an involuntary case under any applicable Bankruptcy Law, or appointing a Custodian of the Company, or for all or substantially all of its property, or ordering the winding up or liquidation of its affairs, and such decree or order remains unstayed and in effect for a period of 90 consecutive days.

 

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

Notwithstanding the foregoing, a Default under clause (e) of this Section 5.02 will not constitute an Event of Default until the Trustee delivers to the Company, or the Holders of 25% or more in principal amount of the outstanding Securities deliver to the Company and the Trustee by registered or certified mail, a written notice specifying such Default and requiring it to be remedied and stating that such notice is a “notice of default” under the Indenture and the Company does not cure such Default within the time specified in clause (e) of this Section 5.02 after receipt of such notice.

The Company shall deliver to the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice in the form of an Officers’ Certificate of any Default or Event of Default under this Section 5.02, which notice shall contain the status thereof and a description of the action being taken or proposed to be taken by the Company in respect thereof. If a Default occurs and is continuing and is known to the Trustee, the Trustee must mail to each Holder notice of the Default within 90 days after it occurs and is known to the Trustee unless the Default has been previously cured. In addition, except in the case of a Default in the payment of principal of, premium, if any, or interest on any Security, the Trustee shall be protected in withholding notice if and so long as a committee of Trust Officers of the Trustee in good faith determines that withholding notice is in the interests of the Holders.

Section 5.03. Acceleration . If an Event of Default (other than an Event of Default specified in Section 5.02(h) or 5.02(i) above) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in outstanding principal amount of the outstanding Securities by notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal of and accrued and unpaid interest, if any, and Additional Interest, if any, on all the Securities to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest and Additional Interest, if any, shall be due and payable immediately. If an Event of Default specified in Section 5.02(h) or 5.02(i) above occurs and is continuing, the principal of and accrued and unpaid interest, if any, and Additional Interest, if any, on all the Securities outstanding shall be immediately due and payable with no further action by the Trustee or the Holders.

Notwithstanding anything herein to the contrary, to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure by the Company to comply with the obligation set forth in Section 3.02 and for any failure to comply with §314(a)(1) of the TIA, will for the first 120 days after the occurrence of such an Event of Default, consist exclusively of the right for Holders to receive Additional Interest on the Securities equal to 0.25% per annum of the principal amount of the Securities. If the Company so elects, such Additional Interest will be payable in the same manner and on the same dates as the stated interest payable on the Securities. The Additional Interest will accrue on all outstanding Securities from and including the date on which such Event of Default first occurs to but not including the 120th day thereafter (or such earlier date on which such Event of Default shall have been cured or waived). On such 120th day after such Event of Default (if the Event of Default relating to such obligation is not

 

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cured or waived prior to such 120th day), such Additional Interest will cease to accrue and the Securities will be subject to acceleration as provided above. The provisions of this paragraph will not affect the rights of Holders in the event of the occurrence of any other Event of Default. In the event the Company does not elect to pay the Additional Interest upon such Event of Default in accordance with this paragraph, the Securities will be subject to acceleration as provided above.

In order to elect to pay the Additional Interest as the sole remedy during the first 120 days after the occurrence of an Event of Default relating to the failure by the Company to comply with the obligation set forth in Section 3.02 or any failure to comply with §314(a)(1) of the TIA in accordance with the immediately preceding paragraph, the Company must notify all Holders, the Trustee and the Paying Agent of such election by delivering to the Trustee an Officers’ Certificate pursuant to Section 3.03 on or before the close of business on the date on which such Event of Default first occurs. Upon the Company’s failure to deliver such Officers’ Certificate or pay the Additional Interest specified in the immediately preceding paragraph, the Securities will be subject immediately to acceleration as provided above.

Section 5.04.  Other Remedies . If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of or interest (including any Additional Interest) on the Securities or to enforce the performance of any provision of the Securities or the Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy, and all available remedies are cumulative.

Section 5.05.  Control by Majority . The Holders of a majority in principal amount of the outstanding Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture or, subject to Sections 601 and 602 of the Original Indenture, that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.

Section 5.06.  Limitation on Suits . Subject to Section 5.07, a Holder may not pursue any remedy with respect to this Supplemental Indenture or the Securities unless:

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

(b) Holders of at least 25% in principal amount of the outstanding Securities have requested that the Trustee pursue the remedy;

 

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(c) such Holders have offered to the Trustee indemnity or security satisfactory to it in its sole discretion against any loss, liability or expense to be incurred in compliance with such request;

(d) the Trustee has not complied with such request within 60 days after receipt of the request and the offer of security or indemnity; and

(e) the Holders of a majority in principal amount of the outstanding Securities have not given the Trustee a direction that, in the opinion of the Trustee