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Sample Business ContractsHome: Sample Business Contracts:
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INDENTURE
Dated as of June 9, 2003
between
GETTY IMAGES, INC., as Issuer
and
THE BANK OF NEW YORK, as Trustee
----------
0.5% Convertible
Subordinated Debentures due 2023
================================================================================
<PAGE>
GETTY IMAGES, INC.
CROSS REFERENCE SHEET
THIS CROSS REFERENCE SHEET SHOWS THE LOCATION IN THE INDENTURE OF THE PROVISIONS
INSERTED PURSUANT TO SECTION 310-318(a), INCLUSIVE, OF THE TIA.
Trust Indenture Indenture
Act Section Section
---------------- ---------
(S) 310(a)(1).............................................. 6.10
(a)(2).............................................. 6.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 6.08, 6.10
(b)................................................. 6.08; 6.10; 17.02
(c)................................................. N.A.
(S) 311(a)................................................. 6.11
(b)................................................. 6.11
(c)................................................. N.A.
(S) 312(a)................................................. 2.05
(b)................................................. 17.03
(c)................................................. 17.03
(S) 313(a)................................................. 6.06
(b)(1).............................................. N.A.
(b)(2).............................................. 6.06
(c)................................................. 6.06; 17.02
(d)................................................. 6.06
(S) 314(a)................................................. 17.02
(b)................................................. N.A.
(c)(1).............................................. 17.04
(c)(2).............................................. 17.04
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 17.05
(f)................................................. N.A.
(S) 315(a)................................................. 6.01(b)
(b)................................................. 6.05; 17.02
(c)................................................. 6.01(a)
(d)................................................. 6.01(c)
(e)................................................. 4.11
(S) 316(a)(last sentence).................................. 2.09
(a)(1)(A)........................................... 4.05
(a)(1)(B)........................................... 4.04
(a)(2).............................................. N.A.
(b)................................................. 4.07
(c)................................................. 9.04
(S) 317(a)(1).............................................. 4.08
(a)(2).............................................. 4.09
(b)................................................. 2.04
(S) 318(a)................................................. 17.01
----------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
Definitions And Other Provisions Of General Application
Section 1.01. Certain Terms Defined...........................................1
Section 1.02. Forms of Documents Delivered to Trustee........................13
Section 1.03. Acts of Holders................................................14
Section 1.04. Effect of Headings and Table of Contents.......................15
Section 1.05. Benefits of Indenture..........................................15
ARTICLE 2
The Securities
Section 2.01. Form and Dating................................................15
Section 2.02. Execution and Authentication...................................16
Section 2.03. Registrar, Paying Agent, Conversion Agent......................16
Section 2.04. Paying Agent to Hold Assets in Trust...........................17
Section 2.05. Holder Lists...................................................17
Section 2.06. Transfer and Exchange..........................................18
Section 2.07. Replacement Securities.........................................19
Section 2.08. Outstanding Securities; Determinations of Holders' Actions.....20
Section 2.09. Temporary Securities...........................................21
Section 2.10. Cancellation...................................................21
Section 2.11. Persons Deemed Owners..........................................22
Section 2.12. Global Securities..............................................22
Section 2.13. Legends........................................................23
Section 2.14. Payment of Interest; Interest Rights Preserved.................24
Section 2.15. CUSIP Numbers..................................................26
Section 2.16. Calculation of Tax Original Issue Discount.....................26
ARTICLE 3
Satisfaction And Discharge
Section 3.01. Discharge of Liability on Securities...........................27
Section 3.02. Repayment of Moneys Held by Trustee............................27
ARTICLE 4
Default And Remedies
Section 4.01. Events of Default..............................................28
Section 4.02. Acceleration...................................................29
Section 4.03. Other Remedies.................................................30
Section 4.04. Waiver of Past Default.........................................30
Section 4.05. Control by Majority............................................31
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<PAGE>
Section 4.06. Limitation on Suits............................................31
Section 4.07. Rights of Holders to Receive Payment...........................32
Section 4.08. Collection Suit by Trustee.....................................32
Section 4.09. Trustee May File Proofs of Claim...............................32
Section 4.10. Priorities.....................................................33
Section 4.11. Undertaking for Costs..........................................33
ARTICLE 5
Subordination
Section 5.01. Agreement to Subordinate.......................................33
Section 5.02. Liquidation, Dissolution, Bankruptcy...........................34
Section 5.03. Default on Senior Indebtedness.................................34
Section 5.04. Acceleration of Payment of Securities..........................35
Section 5.05. When Distribution Must be Paid Over............................36
Section 5.06. Subrogation....................................................36
Section 5.07. Relative Rights................................................36
Section 5.08. Subordination May Not be Impaired by Issuer....................36
Section 5.09. Rights of Trustee and Paying Agent.............................36
Section 5.10. Distribution or Notice to Representative.......................37
Section 5.11. Article Five Not to Prevent Events of Default or Limit Right
to Accelerate...............................................37
Section 5.12. Trustee Entitled to Rely.......................................37
Section 5.13. Trustee to Effectuate Subordination............................38
Section 5.14. Trustee Not Fiduciary for Holders of Senior Indebtedness.......38
Section 5.15. Reliance by Holders of Senior Indebtedness on Subordination
Provisions..................................................38
ARTICLE 6
The Trustee
Section 6.01. Duties of Trustee..............................................38
Section 6.02. Rights of Trustee..............................................39
Section 6.03. Individual Rights of Trustee...................................41
Section 6.04. Trustee's Disclaimer...........................................41
Section 6.05. Notice of Defaults.............................................41
Section 6.06. Compensation and Indemnity.....................................41
Section 6.07. Replacement of Trustee.........................................42
Section 6.08. Successor Trustee by Merger, Etc...............................43
Section 6.09. Eligibility; Disqualification..................................44
Section 6.10. Preferential Collection of Claims Against the Issuer...........44
ARTICLE 7
Holders' Lists and Reports by Trustee and Issuer
Section 7.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Holders........................................44
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<PAGE>
Section 7.02. Preservation of Information; Communications to Holders.........44
Section 7.03. Reports by Trustee.............................................45
Section 7.04. Reports by Issuer..............................................45
ARTICLE 8
Consolidation, Merger, Sale or Conveyance
Section 8.01. Consolidations and Mergers of Issuer Permitted Subject to
Certain Conditions..........................................45
Section 8.02. Rights and Duties of Successor Entity..........................46
ARTICLE 9
Amendments, Supplements And Waivers
Section 9.01. Without Consent of Holders.....................................46
Section 9.02. With Consent of Holders........................................47
Section 9.03. Compliance with Trust Indenture Act............................48
Section 9.04. Record Date for Consents and Effect of Consents................48
Section 9.05. Notation on or Exchange of Securities..........................48
Section 9.06. Trustee to Sign Amendments, Etc................................48
ARTICLE 10
Covenants of the Issuer
Section 10.01. Payment of Principal, Premium and Interest.....................49
Section 10.02. Maintenance of Office or Agency................................49
Section 10.03. Money for Securities Payments to be Held in Trust..............50
Section 10.04. Compliance Certificate.........................................51
Section 10.05. Calculation of Original Issue Discount.........................51
Section 10.06. Further Instruments and Acts...................................51
Section 10.07. Statement by Officers as to Default............................51
ARTICLE 11
Redemption of Securities
Section 11.01. Right to Redeem; Notices to Trustee............................51
Section 11.02. Selection of Securities to Be Redeemed.........................52
Section 11.03. Notice of Redemption...........................................52
Section 11.04. Effect of Notice of Redemption.................................53
Section 11.05. Deposit of Redemption Price....................................53
Section 11.06. Securities Redeemed in Part....................................54
Section 11.07. Conversion Arrangement on Call for Redemption..................54
ARTICLE 12
Conversion
Section 12.01. Conversion Rights..............................................55
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<PAGE>
Section 12.02. Conversion Rights Based on Common Stock Price..................55
Section 12.03. Conversion Rights Upon Credit Rating Events....................55
Section 12.04. Conversion Rights Upon Notice of Redemption....................56
Section 12.05. Conversion Rights Upon Occurrence of Certain Corporate
Transactions................................................56
Section 12.06. Conversion Upon Satisfaction of Trading Price Condition........57
Section 12.07. Conversion Procedures..........................................57
Section 12.08. Fractional Shares..............................................59
Section 12.09. Taxes on Conversion............................................59
Section 12.10. Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock.....59
Section 12.11. Adjustment of Conversion Rate..................................60
Section 12.12. Other Adjustments..............................................71
Section 12.13. Notice of Certain Transactions.................................71
Section 12.14. Effect of Reclassification, Consolidation, Merger or Sale
on Conversion Privilege.....................................72
Section 12.15. Trustee's Disclaimer...........................................73
Section 12.16. Rights Issued in Respect of Common Stock Issued Upon
Conversion..................................................73
Section 12.17. Issuer Determination Final.....................................74
ARTICLE 13
Purchase At Option Of Holders
Section 13.01. Right to Require Purchase......................................74
Section 13.02. Purchase Procedures............................................74
Section 13.03. Effect of Purchase Notice......................................75
Section 13.04. Deposit of Purchase Price......................................76
Section 13.05. Securities Purchased in Part...................................77
Section 13.06. Repayment to the Issuer........................................77
ARTICLE 14
Purchase at Option of Holder Upon a Fundamental Change
Section 14.01. Right to Require Purchase......................................77
Section 14.02. Effect of Fundamental Change Purchase Notice...................80
Section 14.03. Deposit of Fundamental Change Purchase Price...................81
Section 14.04. Securities Purchased in Part...................................82
Section 14.05. Repayment to the Issuer........................................82
ARTICLE 15
Contingent Interest
Section 15.01. Contingent Interest............................................82
Section 15.02. Payment of Contingent Interest.................................83
Section 15.03. Notice of Contingent Interest..................................83
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<PAGE>
ARTICLE 16
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 16.01. Exemption From Individual Liability............................83
ARTICLE 17
Miscellaneous Provisions
Section 17.01. Trust Indenture Act Controls...................................84
Section 17.02. Notices........................................................84
Section 17.03. Communications by Holders with Other Holders...................85
Section 17.04. Certificate and Opinion as to Conditions Precedent.............85
Section 17.05. Statements Required in Certificate.............................86
Section 17.06. Rules by Trustee, Paying Agent, Conversion Agent Registrar.....86
Section 17.07. GOVERNING LAW..................................................86
Section 17.08. No Recourse Against Others.....................................86
Section 17.09. Successors.....................................................86
Section 17.10. Counterpart Originals..........................................86
Section 17.11. Severability...................................................86
Section 17.12. No Adverse Interpretation of Other Agreements..................87
Section 17.13. Legal Holidays.................................................87
EXHIBIT A -- Form of Global Security
v
<PAGE>
INDENTURE, dated as of the 9th day of June, 2003, between GETTY IMAGES,
INC., a Delaware corporation (the "Issuer") and THE BANK OF NEW YORK, a New York
banking corporation (the "Trustee").
WHEREAS, for its lawful corporate purposes, the Issuer deems it necessary
to issue its securities and has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its 0.5% Convertible Subordinated
Debentures due 2023 (the "Securities").
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed by the Issuer and
the Trustee, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
Definitions And Other Provisions Of General Application
Section 1.01. Certain Terms Defined.
(a) Definitions.
"Acceleration Notice" has the meaning set forth in Section 4.02.
"Affiliate" of any specified Person means any other Person which, directly
or indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Members" has the meaning set forth in Section 2.12(f).
"Applicable Stock Price" means, in respect of a Conversion Date, the
average of the Closing Sale Prices per share of Common Stock over the
five-Trading Day period starting the third Trading Day following such Conversion
Date.
"Bankruptcy Law" means Title 11, United States Code or any similar federal,
state or foreign law for the relief of debtors.
<PAGE>
"Base Conversion Price" means the dollar amount derived by dividing the
Principal Amount by the Base Conversion Rate.
"Base Conversion Rate" means 16.3720 shares of Common Stock, subject to
adjustment as set forth in Section 12.11 per $1,000 Principal Amount of
Securities.
"Blockage Notice" has the meaning set forth in Section 5.03.
"Board of Directors" means either the board of directors of the Issuer or
any duly authorized committee of such board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law, regulation or executive order to close.
"Capital Stock" means (i) with respect to any Person that is a corporation,
any and all shares, interests, participations or other equivalents (however
designated) of capital stock of such Person and (ii) with respect to any Person
that is not a corporation, any and all partnership or other equity interests of
such Person.
"Capitalized Lease Obligation" means, as to any Person, the obligation of
such Person to pay rent or other amounts under a lease to which such Person is a
party that is required to be classified and accounted for as a capital lease
obligation under GAAP, and for purposes of this definition, the amount of such
obligation at any date shall be the capitalized amount of such obligation at
such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's; (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any commercial bank organized under
the laws of the United
2
<PAGE>
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $200,000,000; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds that invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets of the
Issuer to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a "Group") (whether or not otherwise in compliance with the
provisions of this Indenture); or (ii) a majority of the board of directors of
the Issuer shall consist of Persons who are not Continuing Directors; or (iii)
the acquisition by any Person or Group of the power, directly or indirectly, to
vote or direct the voting of securities having more than 50% of the ordinary
voting power for the election of directors of the Issuer.
"Closing Sale Price" of the shares of Common Stock on any date means the
closing sale price per share (or, if no closing sale price is reported, the
average of the closing bid and ask prices or, if more than one in either case,
the average of the average closing bid and the average closing ask prices) on
such date as reported on the principal United States securities exchange on
which shares of Common Stock are traded or, if the shares of Common Stock are
not listed on a United States national or regional securities exchange, as
reported by NASDAQ or by the National Quotation Bureau Incorporated. In the
absence of such quotations, the Issuer shall be entitled to determine the
Closing Sale Price on the basis it considers appropriate. The Closing Sale Price
shall be determined without reference to extended or after hours trading.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement.
"Common Stock" shall mean the Getty Common Stock, $0.01 par value, as it
exists on the date of this Indenture or any other capital stock of the Issuer
into which such Getty Common Stock shall be reclassified or changed.
"Contingent Interest" means such cash interest payable as described in
Article 15.
"Continuing Director" means, as of the date of determination, any Person
who (i) was a member of the Board of Directors of the Issuer as of the date of
this Indenture or, (ii) was nominated for election or elected to the Board
3
<PAGE>
of Directors of the Issuer with the affirmative vote of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
"Conversion Agent" has the meaning set forth in Section 2.03.
"Conversion Notice" has the meaning set forth in Section 12.07.
"Conversion Rate" with respect to any Conversion Date prior to June 9, 2008
means:
(i) if the Applicable Stock Price is less than or equal to the Base
Conversion Price, the Base Conversion Rate; or
(ii) if the Applicable Stock Price is greater than the Base Conversion
Price, the number of shares of Common Stock determined in accordance with
the following formula:
<TABLE>
<S> <C> <C>
Base Conversion Rate + [ (Applicable Stock Price - Base Conversion Price) x Incremental Share Factor ]
------------------------------------------------
Applicable Stock Price
</TABLE>
Notwithstanding the foregoing, in no event will the Conversion Rate exceed the
Maximum Conversion Rate. From and after June 9, 2008, the Conversion Rate shall
be fixed at the Conversion Rate determined as set forth above assuming a
Conversion Date that is eight Trading Days prior to June 9, 2008 (the "Fixed
Conversion Rate"), subject to adjustment as set forth in Article 12.
"Corporate Trust Office" means the principal office of the Trustee at which
at any time its corporate trust business shall be administered, which office at
the date hereof is located at 101 Barclay Street, 8W, New York, NY 10286,
Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Issuer, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Issuer).
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.14.
4
<PAGE>
"Depositary" means, with respect to the Securities issued in the form of
one or more Global Securities, The Depository Trust Company or another Person
designated as Depositary by the Issuer, which must be a clearing agency
registered under the Exchange Act.
"Depositary Custodian" means any Person appointed by the Trustee to act as
custodian of Global Securities for the Depositary.
"Designated Senior Indebtedness" means (i) any Senior Indebtedness under
the Senior Credit Facilities and (ii) any other Senior Indebtedness of the
Issuer which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $20,000,000 and is specifically
designated by the Issuer in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
"Disqualified Capital Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control), in whole or in part, on or prior to
the Stated Maturity Date of the Securities; provided that only the portion of
Capital Stock which so matures or is mandatorily redeemable or is so redeemable
at the sole option of the holder thereof prior to June 9, 2023 shall be deemed
Disqualified Capital Stock.
"Effective Conversion Price" means, as of any date of determination, a
dollar amount derived by dividing the Principal Amount by the Conversion Rate
then in effect (assuming a Conversion Date eight Trading Days prior to the date
of determination); provided that from and after June 9, 2008 (or if such day is
not a Business Day, the immediately succeeding Business Day), the Effective
Conversion Price shall be the Principal Amount as of such date of determination
divided by the Fixed Conversion Rate.
"Event of Default" has the meaning provided in Section 4.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Fixed Conversion Rate" has the meaning set forth in the definition of
Conversion Rate.
5
<PAGE>
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of this Indenture, including those set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or the Commission or
in such other statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
"Global Security" or "Global Securities" means Securities that are in the
form of the Securities attached hereto as Exhibit A.
"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, and when used as a verb has a
correlative meaning.
"Holder" means a person in whose name a Security is registered on the
Registrar's books.
"Holding Company" means a company as to which the Issuer is, directly or
indirectly, a Subsidiary.
"Incremental Share Factor" means 16.3720 shares of Common Stock, subject to
adjustment as set forth in Article 12.
"Indebtedness" means with respect to any Person, without duplication, any
liability of such Person (i) for borrowed money, (ii) evidenced by bonds,
debentures, notes or other similar instruments, (iii) constituting Capitalized
Lease Obligations, (iv) incurred or assumed as the deferred purchase price of
property, or pursuant to conditional sale obligations and title retention
agreements (but excluding trade accounts payable arising in the ordinary course
of business), (v) for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (vi) for Indebtedness of
others Guaranteed by such Person, (vii) for Interest Swap Agreements, Commodity
Agreements and Currency Agreements and (viii) for Indebtedness of any other
Person of the type referred to in clauses (i) through (vii) which is secured by
any Lien on any property or asset of such first referred to Person, the amount
of such Indebtedness being deemed to be the lesser of the value of such property
or asset or the amount of the Indebtedness so secured. The amount of
Indebtedness of any Person at any date shall be (i) the outstanding principal
amount of all unconditional obligations described above, as such amount would be
reflected on a balance sheet prepared in accordance with GAAP, and the maximum
liability at such date of such Person for any contingent obligations described
above, (ii)
6
<PAGE>
the accreted value thereof, in the case of any Indebtedness issued with original
issue discount, and (iii) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date" means June 9, and December 9 of each year, subject
to Section 17.13, commencing December 9, 2003.
"Interest Period" means the period from and including the most recent
Interest Payment Date to which interest has been paid or duly made available for
payment (or June 9, 2003 if no interest has been paid or been duly made
available for payment) to, but excluding, the next succeeding Interest Payment
Date, or any earlier Fundamental Change Purchase Date, Redemption Date or
Purchase Date.
"Interest Swap Agreements" means any interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Issuer" means the party named as the "Issuer" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any such subsequent successor or
successors.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the Issuer by any Officer and delivered to the Trustee.
"Legend" has the meaning set forth in Section 2.06(f).
"License Rights" has the meaning set forth in Section 4.06.
"Lien" means, with respect to any asset, any lien, mortgage, deed of trust,
pledge, security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest).
"Liquidated Damages" means the Liquidated Damages Amount (as defined in the
Registration Rights Agreement).
"Maximum Conversion Rate" means 26.2054 shares of Common Stock, subject to
adjustment as set forth in Article 12.
7
<PAGE>
"Moody's" means Moody's Investors Services and its successors.
"NASDAQ" means the NASDAQ National Market, Inc.
"non-electing share" has the meaning set forth in Section 12.14.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing, or otherwise relating to, any
Indebtedness.
"Officer" means the Chairman of the Board, a Vice Chairman of the Board,
the President, any Vice President, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Controller, any Assistant Controller, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Issuer.
"Officers' Certificate" means a written certificate containing the
information specified in Section 17.04, signed in the name of the Issuer by any
two Officers and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee and that contains the information specified
in Section 17.04. The counsel may be an employee of, or counsel to, the Issuer.
"pay the Securities" has the meaning set forth in Section 5.03.
"Paying Agent" has the meaning set forth in Section 2.03(a).
"Payment Blockage Period" has the meaning set forth in Section 5.03.
"person" or "Person" means any individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Amount" of a Security means the stated Principal Amount as set
forth on the face of such Security.
"Purchase Agreement" means the Purchase Agreement dated as of June 9, 2003
among the Issuer and Deutsche Bank Securities Inc. and Goldman, Sachs & Co., as
initial purchasers.
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"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Redemption Date" means the date specified for redemption of the Securities
in accordance with the terms of the Securities and this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, 100% of the Principal Amount of such Security as of the Redemption
Date, plus accrued and unpaid interest (including Contingent Interest and
Liquidated Damages, if any) to, but excluding, the Redemption Date.
"Registrar" has the meaning set forth in Section 2.03(a).
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of June 9, 2003 among the Issuer, Deutsche Bank Securities Inc. and
Goldman, Sachs & Co., as initial purchasers.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the June 1 or December 1, as the case may be, immediately preceding such
Interest Payment Date.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Senior Indebtedness; provided, however, that
if, and for so long as, any issue of Senior Indebtedness lacks such a
representative, then the Representative for such issue of Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department (or any successor group) including
without limitation any vice president, any assistant vice president, 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 his knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means a Subsidiary of the Issuer other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Issuer
existing as of the date of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
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"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies Inc., and its successors.
"Securities" or "Security" means any of the Issuer's 0.5% Convertible
Subordinated Debentures due 2023, as amended or supplemented from time to time,
issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder.
"Security Register" means the register maintained by the Registrar that
evidences ownership of the Securities.
"Senior Credit Facilities" means the senior credit facilities evidenced by
that certain Credit Agreement dated as of July 19, 2002, among the Issuer, Bank
of America, N.A., as Administrative Agent, and the lenders from time to time
party to the Credit Agreement, together with all amendments, modifications,
replacements and refinancings thereof.
"Senior Indebtedness" means, whether outstanding on the date of this
Indenture or thereafter issued, all Indebtedness of the Issuer, including
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Issuer or any Restricted
Subsidiary whether or not a claim for post-filing interest is allowed in such
proceeding) and premium, if any, thereon, and other monetary amounts (including
fees, expenses, reimbursement obligations under letters of credit and
indemnities) owing in respect thereof unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that the obligations in respect of such Indebtedness rank pari passu with the
Securities; provided, however, that Senior Indebtedness will not include (1) any
obligation of the Issuer to any majority owned Restricted Subsidiary, (2) any
Indebtedness, Guarantee or obligation of the Issuer that is expressly
subordinate or junior in right of payment to any other Indebtedness, Guarantee
or obligation of the Issuer, including any Subordinated Indebtedness, or (3)
obligations in respect of any Capital Stock.
"Significant Restricted Subsidiary" means, at any date of determination,
any Restricted Subsidiary that would be a "significant subsidiary" as defined in
Article I, Rule 1-02 of Regulation S-X, promulgated under the Securities Act, as
such rule is in effect on the date of this Indenture.
"Special Record Date" means, for the payment of any Defaulted Interest, the
date fixed by the Trustee pursuant to Section 2.14.
"Stated Maturity Date" means June 9, 2023.
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"Subordinated Indebtedness" means the Securities and any other Indebtedness
of the Issuer that specifically provides that such Indebtedness is to rank pari
passu with, or junior to, the Securities in right of payment and is subordinated
by its terms in right of payment to any Indebtedness or other obligation of the
Issuer that is Senior Indebtedness.
"Subsidiary" with respect to any Person, means (i) any corporation of which
the outstanding Capital Stock having at least a majority of the votes entitled
to be cast in the election of directors under ordinary circumstances shall at
the time be owned, directly or indirectly through one or more intermediaries, by
such Person or (ii) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or indirectly
through one or more intermediaries, owned by such Person. Notwithstanding
anything in this Indenture to the contrary, all references to the Issuer and its
consolidated Subsidiaries or to financial information prepared on a consolidated
basis in accordance with GAAP shall be deemed to include the Issuer and its
Subsidiaries as to which financial statements are prepared on a combined basis
in accordance with GAAP and to financial information prepared on such a combined
basis. Notwithstanding anything in this Indenture to the contrary, an
Unrestricted Subsidiary shall not be deemed to be a Restricted Subsidiary for
purposes of this Indenture.
"Tax Original Issue Discount" means the amount of ordinary interest income
on a Security that must be accrued as original issue discount for United States
Federal income tax purposes pursuant to Treasury Regulation Section 1.1275-4 or
any successor provision.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange, by NASDAQ or,
if the Common Stock is not quoted by NASDAQ, on the principal other market on
which the Common Stock is then traded.
"Trading Price" means, on any date, the average of the secondary market bid
quotations per $1,000 Principal Amount of the Securities obtained by the Issuer
or a quotation agent appointed by the Issuer for $5,000,000 Principal Amount of
Securities at approximately 3:30 p.m., New York City time, on such date from
three independent nationally recognized securities dealers selected by the
Issuer; provided that if at least three such bids cannot reasonably be obtained
by the Issuer or such agent, but two bids are obtained, then the average of the
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two bids shall be used, and if only one such bid can reasonably be obtained by
the Issuer or such agent, one bid shall be used; and provided further that if
the Issuer or such agent cannot reasonably obtain at least one bid for
$5,000,000 Principal Amount of Securities from a nationally recognized
securities dealer or in the Issuer's reasonable judgment, the bid quotations are
not indicative of the secondary market value of the Securities, then the Trading
Price per $1,000 Principal Amount of Securities on such date shall be deemed to
be less than 95% of the product of (a) the Conversion Rate on such date
(determined using the Closing Sale Price on such date rather than the Applicable
Stock Price) and (b) the Closing Sale Price on such date.
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Unrestricted Subsidiary" means a Subsidiary of the Issuer so designated by
a resolution adopted by the Board of Directors of the Issuer; provided, however,
that (a) neither the Issuer nor any of its other Restricted Subsidiaries (1)
provides any credit support for any Indebtedness or other Obligations of such
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) or (2) is directly or indirectly liable for any Indebtedness or
other Obligations of such Subsidiary and (b) at the time of designation of such
Subsidiary, such Subsidiary has no property or assets (other than de minimis
assets resulting from the initial capitalization of such Subsidiary). The Board
of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such
designation no Default or Event of Default shall have occurred or be continuing.
Any designation pursuant to this definition by the Board of Directors of the
Issuer shall be evidenced to the Trustee by the filing with the Trustee of a
certified copy of the resolution of the Issuer's Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation complies with the foregoing conditions.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the then outstanding
aggregate principal amount of such Indebtedness into (b) the total of the
product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of
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years (calculated to the nearest one-twelfth) which will elapse between such
date and the making of such payment.
(b) Other Definitions.
Defined in
Term Section
------------------------------------------------------------------- ----------
"Act".............................................................. 1.03
"Adjustment Event"................................................. 12.11(n)
"Conversion Date" 12.07
"Current Market Price"............................................. 12.11(j)
"Determination Date"............................................... 12.11(n)
"Distributed Property" ............................................ 12.11(d)
"Ex-Dividend Date"................................................. 12.11(g)
"Ex-Dividend Time"................................................. 12.05
"Expiration Time".................................................. 12.11(f)
"Fair Market Value"................................................ 12.11(j)
"Fundamental Change"............................................... 14.01(a)
"Fundamental Change Purchase Date"................................. 14.01(a)
"Fundamental Change Purchase Notice"............................... 14.01(c)
"Fundamental Change Purchase Price"................................ 14.01(a)
"Principal Value Conversion"....................................... 12.06
"Purchase Date".................................................... 13.01
"Purchased Shares" ................................................ 12.11(f)
"Purchase Notice".................................................. 13.01
"Purchase Price"................................................... 13.01
"QIB".............................................................. 2.01
"Record Date"...................................................... 12.11(j)
"Rights"........................................................... 12.16
"Rights Agreement"................................................. 12.16
"Trigger Event" ................................................... 12.11(d)
Section 1.02. Forms of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer actually knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion
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of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer stating that the information with respect to such factual matters is in
the possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care (but without having made an investigation specifically for the
purpose of rendering such opinion) should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.03. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Issuer may, but shall not be obligated to, set a record date for
purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled
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to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date. No action approved by such vote or consent shall be taken more than
six months after such record date.
Section 1.04. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.05. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
ARTICLE 2
The Securities
Section 2.01. Form and Dating. The Securities and the Trustee's certificate
of authentication thereof shall be substantially in the form of Exhibit A
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Issuer and the Trustee shall approve
the form of the Securities and any notation, legend or endorsement on them. Each
Security shall be dated the date of its issuance and shall show the date of its
authentication.
All of the Securities are initially being offered and sold to qualified
institutional buyers as defined in Rule 144A (collectively, "QIBs" or
individually a "QIB") in reliance on Rule 144A under the Securities Act and
shall be issued initially in the form of one or more restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, or any Depositary Custodian, as
custodian for the Depositary, and registered in the name of its nominee, Cede &
Co., duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided.
Each Global Security shall represent such of the outstanding Securities as
shall be specified therein and each shall provide that it shall represent the
aggregate Principal Amount of outstanding Securities from time to time endorsed
thereon and that the aggregate Principal Amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the Principal Amount of outstanding Securities
represented thereby shall be made by the Trustee or Depositary Custodian in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee or Depositary Custodian.
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Certificated Securities shall be issued only under the limited
circumstances provided in Section 2.12(b) hereof.
Section 2.02. Execution and Authentication. (a) One or more Officers shall
sign (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) the Securities for the Issuer by manual or
facsimile signature.
(b) If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless.
(c) A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
(d) The Trustee shall authenticate Securities for original issue in an
aggregate Principal Amount not to exceed such written order as shall specify the
amount of Securities to be authenticated and the date on which the Securities
are to be authenticated and specifying such other information as the Trustee may
reasonably request. The aggregate Principal Amount of Securities outstanding at
any time may not exceed $265,000,000 (other than as provided in Sections 5.03
and 5.04).
(e) Notwithstanding the foregoing, all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote or consent) as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.
(f) The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuer to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Issuer and Affiliates of the
Issuer.
(g) The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 2.03. Registrar, Paying Agent, Conversion Agent. The Issuer shall
maintain an office or agency, which may be in the Borough of Manhattan, The City
of New York, where (i) Securities may be presented or surrendered for
registration of transfer or for exchange (the "Registrar"), (ii) Securities may
be presented or surrendered for payment (the "Paying Agent"), (iii) Securities
may be presented for conversion (the "Conversion Agent") and (iv) notices and
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demands in respect of the Securities and this Indenture may be served. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Issuer, upon notice to the Trustee, may appoint one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. Except as provided herein, the Issuer may
act as Paying Agent, Registrar or co-Registrar.
(b) The Issuer shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuer shall notify the Trustee of the name and
address of any such Agent. If the Issuer fails to maintain a Registrar or Paying
Agent, or fails to give the foregoing notice, the Trustee shall act as such and
shall be entitled to appropriate compensation in accordance with Section 6.06.
(c) The Issuer initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.
Section 2.04. Paying Agent to Hold Assets in Trust. (a) The Issuer shall
require each Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, or interest on,
the Securities, and shall notify the Trustee of any Default by the Issuer in
making any such payment. The Issuer at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Issuer to the Paying Agent (if other than the Issuer), the
Paying Agent shall have no further liability for such assets. If the Issuer or
any of its Affiliates acts as Paying Agent, it shall, on or before each due date
of the principal of or interest on the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Section 2.05. Holder Lists. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names
and addresses of Holders. If the Trustee is not the Registrar, the Issuer shall
furnish to the Trustee before each Interest Record Date and at such other times
as the Trustee may request in writing a list as of such date and in such form as
the Trustee may reasonably require of the names and addresses of Holders, which
list may be conclusively relied upon by the Trustee.
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Section 2.06. Transfer and Exchange. (a) Subject to Section 2.12 hereof,
upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Holder or such Holder's attorney duly authorized in writing, at the office
or agency of the Issuer designated as Registrar or co-registrar pursuant to
Section 2.03, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denomination or denominations, of a like
aggregate Principal Amount. The Issuer shall not charge a service charge for any
registration of transfer or exchange, but the Issuer may require payment of a
sum sufficient to pay all taxes, assessments or other governmental charges that
may be imposed in connection with the transfer or exchange of the Securities
from the Holder requesting such transfer or exchange.
The Issuer shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Fundamental
Change Purchase Notice has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of Securities
to be purchased in part, the portion thereof not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and exchanges
as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall provide
to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
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(f) If Securities are issued upon the transfer, exchange or replacement of
Securities subject to restrictions on transfer and bearing the legends on the
form of Security attached hereto as Exhibit A setting forth such restrictions
(collectively, the "Legend"), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall
not be removed, as the case may be, unless there is delivered to the Issuer and
the Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Issuer and the Registrar, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or that such Securities are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Issuer to
the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
at the written direction of the Issuer, shall authenticate and deliver a
Security that does not bear the Legend. If the Legend is removed from the face
of a Security and the Security is subsequently held by an Affiliate of the
Issuer, the Legend shall be reinstated. Any shares of Common Stock issued upon
conversion of Securities that bear the Legend shall bear a restricted legend
substantially identical to the Legend (except that such Legend shall not refer
to any shares of Common Stock issuable upon conversion of Securities).
(g) Nothing in this Indenture or in the Securities shall prohibit the sale
or other transfer of any Securities (including beneficial interests in Global
Securities) to the Issuer or any of its Subsidiaries, which Securities shall
thereupon be canceled in accordance with Section 2.10 of this Indenture.
(h) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members (as
defined below) or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and when expressly required by, the terms
of this Indenture (including, without limitation, the obligations and duties of
the Trustee set forth in Section 2.06 hereof), and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section 2.07. Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Issuer and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Issuer and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Issuer or the Trustee that such Security has been acquired by a
bona fide purchaser, the Issuer shall execute and upon its written request the
Trustee shall
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authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, or is about to be purchased by the Issuer
pursuant to Articles 13 or 14 hereof, the Issuer in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.08. Outstanding Securities; Determinations of Holders' Actions.
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those delivered to it pursuant to Section 2.07 and those described in this
Section 2.08 as not outstanding. A Security does not cease to be outstanding
because the Issuer or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite Principal
Amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles 4 and 6).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a
Fundamental Change Purchase Date, or on the Stated Maturity Date, money or
securities, if permitted hereunder, sufficient to pay Securities payable on that
date, then immediately after such Redemption Date, Purchase Date, Fundamental
Change Purchase Date or Stated Maturity Date, as the case may be, such
Securities shall cease to be outstanding and interest (including Contingent
Interest and Liquidated Damages, if any) on such Securities shall cease to
accrue; provided, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
If a Security is converted in accordance with Article 12, then from and
after the time of conversion on the Conversion Date, such Security shall cease
to be outstanding and interest (including Contingent Interest, if any) shall
cease to accrue on such Security.
Section 2.09. Temporary Securities. Pending the preparation of definitive
Securities, the Issuer may execute, and upon Issuer Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Issuer will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Issuer designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Issuer shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like Principal Amount of definitive
Securities of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
Section 2.10. Cancellation. All Securities surrendered for payment,
purchase by the Issuer pursuant to Article 13 or Article 14, conversion pursuant
to Article 12, redemption or registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Issuer may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Issuer may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. The Issuer
may not issue new Securities to replace Securities it has paid or delivered to
the
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Trustee for cancellation or that any Holder has converted pursuant to Article
12. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be disposed
of by the Trustee in accordance with its customary practice.
Section 2.11. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Issuer, the Trustee and any agent of the
Issuer or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Redemption Price, Purchase Price
or Fundamental Change Purchase Price in respect thereof, and interest thereon,
for the purpose of conversion and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Issuer, the Trustee nor any agent
of the Issuer or the Trustee shall be affected by notice to the contrary.
Section 2.12. Global Securities.
(a) Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.06 and this Section 2.12. A Global Security
may not be transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer to any
such other Person may be registered; provided that this clause (a) shall not
prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to any
Person shall be effective under this Indenture unless and until such Security
has been registered in the name of such Person.
(b) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part for a
Security registered in the name of any Person other than the Depositary or one
or more nominees thereof; provided that a Global Security may be exchanged for
Securities registered in the names of any person designated by the Depositary in
the event that (i) the Depositary has notified the Issuer that it is unwilling
or unable to continue as Depositary for such Global Security and a successor
Depositary is not appointed by the Issuer within 90 days, (ii) the Issuer
decides to discontinue the use of the system of book-entry transfer through the
Depositary (or any successor Depositary) or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. Any Global Security
exchanged pursuant to clause (i) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause (iii) above may be
exchanged in whole or from time to time in part as directed by the Depositary.
Any Security issued in exchange for a Global Security or any portion thereof
shall be a Global Security; provided that any such Security so issued that is
registered in the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Security.
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(c) Securities issued in exchange for a Global Security or any portion
thereof shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate Principal Amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the Depositary shall designate
and shall bear the applicable Legends provided for herein. Any Global Security
to be exchanged in whole shall be surrendered by the Depositary to the Trustee
or the Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its nominee with respect to
such Global Security, the Principal Amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(d) Subject to the provisions of Section 2.12(f) below, the registered
Holder may grant proxies and otherwise authorize any Person, including Agent
Members (as defined below) and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(e) In the event of the occurrence of any of the events specified in
Section 2.12(b) above, the Issuer will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully registered
form, without interest coupons.
(f) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with respect to any
Global Security registered in the name of the Depositary or any nominee thereof,
or under any such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Issuer, the Trustee and any agent of the
Issuer or the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer or the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on whose behalf
an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.
Section 2.13. Legends.
(a) Subject to the succeeding paragraph, every Security shall be subject to
the restrictions on transfer provided in the Legend including the
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delivery of a certification or an Opinion of Counsel as set forth in the Legend,
if so requested by the Issuer or the Registrar.
(b) The restrictions imposed by the Legend upon the transferability of any
Security shall cease and terminate when such Security has been sold pursuant to
an effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.13 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Issuer, addressed to the Issuer and the Registrar
and in form acceptable to the Issuer, to the effect that the transfer of such
Security has been made in compliance with Rule 144 or such successor provision),
be exchanged for a new Security, of like tenor and aggregate Principal Amount,
which shall not bear the restrictive Legend. The Issuer shall inform the Trustee
of the effective date of any registration statement registering the Securities
under the Securities Act. The Trustee and the Registrar shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the aforementioned opinion of counsel or registration statement.
(c) As used in the preceding two paragraphs of this Section 2.13, the term
"transfer" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
Section 2.14. Payment of Interest; Interest Rights Preserved. Interest,
including any Contingent Interest, on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Issuer maintained for such
purpose pursuant to Section 10.02. However, the Issuer may make such interest
payments by check payable to or upon the written order of the Person entitled
thereto pursuant to Section 17.03, to the address of such Person as it appears
on the Security Register; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest
(including Contingent Interest, if any) on all Global Securities and all
Securities of Holders of more than $25,000,000 aggregate Principal Amount of
Securities that have requested such method of payment and provided wire transfer
instructions to the Issuer or the Paying Agent.
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Any interest or Contingent Interest on any Security of which is payable but
is not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Issuer
shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at the
same time the Issuer 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 on or
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment 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 Issuer of such Special Record
Date and, in the name and at the expense of the Issuer, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Securities
at his address as it appears in the Security Register, 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 therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or 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 (b).
(b) The Issuer may make payment of any Defaulted Interest on the Securities
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Issuer to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
On conversion of a Holder's Securities, such Holder shall not receive any
cash payment of interest. Except as set forth in the next succeeding paragraph,
the Issuer's delivery to a Holder of the full number of shares of Common Stock
into which a Security is convertible, together with any cash payment for such
Holder's fractional shares, or cash or a combination of cash and Common Stock in
lieu thereof, shall be deemed to satisfy the Issuer's obligation to pay the
Principal Amount of the Security and to satisfy the Issuer's obligation to pay
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accrued but unpaid interest (including Contingent Interest, if any) attributable
to the period from the most recent Interest Payment Date through the Conversion
Date.
Notwithstanding the above, if any Securities are converted during the
period from the close of business on any Regular Record Date immediately
preceding any Interest Payment Date to the close of business on the Business Day
immediately preceding such Interest Payment Date, such Securities shall be
accompanied by payment to the Issuer or its order, in New York Clearing House
funds or other funds acceptable to the Issuer, of an amount equal to the
interest payable on such Interest Payment Date with respect to the Principal
Amount of Securities or portions thereof being surrendered for conversion;
provided that no such payment need be made (1) if the Issuer has specified a
Redemption Date under Article 11 that occurs during the period from the close of
business on a Regular Record Date to the close of business on the Business Day
immediately preceding the Interest Payment Date to which such Regular Record
Date relates, (2) if the Issuer has specified a Fundamental Change Purchase Date
during such period or (3) to the extent of overdue interest or overdue
Contingent Interest, any overdue interest or overdue Contingent Interest exists
on the Conversion Date with respect to the Securities converted.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Security.
Section 2.15. CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.16. Calculation of Tax Original Issue Discount. The Issuer
agrees, and by acceptance of a beneficial interest in a Security each Holder and
any beneficial owner of a Security shall be deemed to agree, to treat, for
United States federal income tax purposes, the Securities as debt instruments
that are subject to Treasury Regulation Section 1.1275-4(b). For United States
federal income tax purposes, the Issuer agrees, and by acceptance of a
beneficial interest in a Security each Holder and any beneficial owner of a
Security shall be deemed to agree, to treat the fair market value of the Common
Stock received upon the conversion of a Security as a contingent payment for
purposes of Treasury Regulation Section 1.1275-4(b) and to accrue interest with
respect to outstanding Securities as original issue discount for United States
federal income
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tax purposes (i.e., Tax Original Issue Discount) according to the "noncontingent
bond method," set forth in Section 1.1275-4(b) of the Treasury Regulations,
using the comparable yield of 8.25% compounded semi-annually and using the
projected payment schedule determined by the Issuer. Holders or beneficial
owners may obtain a copy of the projected payment schedule by contacting the
Issuer: Getty Images, Inc., 601 N 34th Street, Seattle, Washington 98103,
Attention: Treasurer.
The Issuer acknowledges and agrees, and by acceptance of a beneficial
interest in a Security each Holder and any beneficial owner of a Security shall
be deemed to acknowledge and agree, that (i) the comparable yield means the
annual yield the Issuer would pay, as of the Issue Date, on a noncontingent,
non-convertible, fixed-rate debt instrument with terms and conditions otherwise
similar to those of the Securities and (ii) the comparable yield and the
schedule of projected payments that a Holder or beneficial owner may obtain as
described above do not constitute a representation by the Issuer regarding the
actual amounts that will be paid on the Securities or the value of the Common
Stock into which the Securities may be converted.
ARTICLE 3
Satisfaction And Discharge
Section 3.01. Discharge of Liability on Securities. When (i) the Issuer
delivers to the Trustee or any Paying Agent all outstanding Securities (other
than Securities replaced pursuant to Section 2.07 of the Indenture) for
cancellation or (ii) all outstanding Securities have become due and payable,
whether on the Stated Maturity Date, any Redemption Date, any Purchase Date, any
Fundamental Change Purchase Date, or upon conversion or otherwise, and the
Issuer deposits with the Trustee, any Paying Agent or the Conversion Agent, if
applicable, cash or, if expressly permitted by the terms of the Securities,
Common Stock sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Issuer pays all other sums payable hereunder by the Issuer, then
this Indenture shall, subject to Section 6.06, cease to be of further effect,
except for the indemnification of the Trustee, which shall survive such
satisfaction and discharge. The Trustee shall join in the execution of a
document prepared by the Issuer acknowledging satisfaction and discharge of this
Indenture on demand of the Issuer accompanied by an Officers' Certificate and
Opinion of Counsel and at the reasonable cost and expense of the Issuer.
Section 3.02. Repayment of Moneys Held by Trustee. The Trustee and the
Paying Agent shall return to the Issuer any cash that remains unclaimed for two
years after the date upon which the principal of or interest on such Security
shall have become due and payable, subject to applicable unclaimed property law,
together with interest, if any, thereon held by them for the payment of the
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principal of or interest on such Security, provided, however, that to the extent
that the aggregate amount of cash or Common Stock deposited by the Issuer
exceeds the aggregate principal and interest due on the Securities or portions
thereof which the Issuer is obligated to purchase as of the relevant date, then
promptly after the Business Day following such date, the Trustee or the Paying
Agent, as applicable, shall return any such excess to the Issuer. Thereafter,
any Holder entitled to payment must look to the Issuer for payment as general
creditors, unless an applicable abandoned property law designates another
Person.
ARTICLE 4
Default And Remedies
Section 4.01. Events of Default. Each of the following shall be an "Event
of Default" for purposes of this Indenture:
(a) the failure to pay interest, including Contingent Interest, if any, or
Liquidated Damages, if any, on any Security when the same becomes due and
payable and the Default continues for a period of 30 days (whether or not such
payment is prohibited by Article 5);
(b) the failure to pay principal of any Security when such principal
becomes due and payable, at maturity, upon redemption, repurchase, a Fundamental
Change or otherwise (whether or not such payment is prohibited by Article 5);
(c) a default in the observance or performance of any other covenant or
agreement contained in the Securities or this Indenture, which default continues
for a period of 60 consecutive days after the Issuer receives written notice
thereof specifying the default from the Trustee or Holders of at least 25% in
aggregate Principal Amount of outstanding Securities;
(d) the failure to pay at the final stated maturity (giving effect to any
extensions thereof) the principal amount of any Indebtedness of the Issuer or
any Restricted Subsidiary of the Issuer, or the acceleration of the final stated
maturity of any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the aggregate principal amount of any other such
Indebtedness in default for failure to pay principal at the final stated
maturity (giving effect to any extensions thereof) or which has been
accelerated, aggregates $20,000,000 or more at any time, in each case after a
10-day period during which such default shall not have been cured or such
acceleration rescinded;
(e) one or more judgments in an aggregate amount in excess of $25,000,000
(which are not covered by insurance as to which the insurer has not disclaimed
coverage or which are not, in the good faith judgment of the Board of
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Directors, subject to third party indemnification) being rendered against the
Issuer or any of its Significant Restricted Subsidiaries and such judgment or
judgments remain undischarged or unstayed for a period of 60 days after such
judgment or judgments become final and nonappealable;
(f) the Issuer or any of its Significant Restricted Subsidiaries (or one or
more Restricted Subsidiaries that, taken together would constitute a Significant
Restricted Subsidiary) of the Issuer pursuant to or within the meaning of any
Bankruptcy Law: (i) admits in writing its inability to pay its debts generally
as they become due; (ii) commences a voluntary case or proceeding; (iii)
consents to the entry of an order for relief against it in an involuntary case
or proceeding; (iv) consents or acquiesces in the institution of a bankruptcy or
insolvency proceeding against it; (v) consents to the appointment of a Custodian
of it or for all or substantially all of its property; or (vi) makes a general
assignment for the benefit of its creditors, or any of them takes any action to
authorize or effect any of the foregoing; or
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Issuer or any Significant
Restricted Subsidiary (or one or more Restricted Subsidiaries that, taken
together would constitute a Significant Restricted Subsidiary) of the Issuer in
an involuntary case or proceeding; (ii) appoints a Custodian of the Issuer or
any Significant Restricted Subsidiary (or one or more Restricted Subsidiaries
that, taken together would constitute a Significant Restricted Subsidiary) of
the Issuer for all or substantially all of its property; or (iii) orders the
liquidation of the Issuer or any Significant Restricted Subsidiary (or one or
more Restricted Subsidiaries that, taken together would constitute a Significant
Restricted Subsidiary) of the Issuer; and in each case the order or decree
remains unstayed and in effect for 60 days; provided, however, that if the entry
of such order or decree is appealed and dismissed on appeal, then the Event of
Default hereunder by reason of the entry of such order or decree shall be deemed
to have been cured.
Section 4.02. Acceleration. If an Event of Default with respect to the
Securities (other than an Event of Default specified in Section 4.01(f) or
4.01(g)) occurs and is continuing, the Trustee may, or the Trustee upon the
request of Holders of 25% in Principal Amount of the outstanding Securities
shall, or the Holders of at least 25% in aggregate Principal Amount of the
outstanding Securities may declare the principal of all the Securities, together
with all accrued and unpaid interest and premium, if any, to be due and payable
by notice in writing to the Issuer and the Trustee specifying the respective
Event of Default and that it is a "notice of acceleration" (the "Acceleration
Notice"), and the same shall become immediately due and payable.
If an Event of Default specified in Section 4.01(f) or 4.01(g) occurs, all
unpaid principal of and accrued interest on all outstanding Securities shall
ipso
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facto become immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder.
At any time after such declaration with respect to the Securities, the
Holders of a majority in Principal Amount of Securities then outstanding (by
notice to the Trustee) may rescind and cancel such declaration and its
consequences if (i) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction, (ii) all existing Defaults and
Events of Default have been cured or waived except nonpayment of principal of or
interest on the Securities that has become due solely by such declaration of
acceleration, (iii) to the extent the payment of such interest is lawful,
interest (at the same rate specified in the Securities) on overdue installments
of interest and overdue payments of principal, which has become due otherwise
than by such declaration of acceleration has been paid, (iv) the Issuer has paid
the Trustee its reasonable compensation and reimbursed the Trustee for its
reasonable expenses, disbursements and advances and (v) in the event of the cure
or waiver of a Default or Event of Default of the type described in Section
4.01(f) or 4.01(g), the Trustee has received an Officers' Certificate and
Opinion of Counsel that such Default or Event of Default has been cured or
waived. The Holders of a majority in Principal Amount of the Securities may
waive any existing Default or Event of Default under this Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any Securities. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
Section 4.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on the Securities
or to enforce the performance of any provision of the Securities or this
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 maturing
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. All available remedies are cumulative to the extent permitted by
law.
Section 4.04. Waiver of Past Default. Subject to Sections 4.07 and 9.02,
prior to the declaration of acceleration of the Securities, the Holders of not
less than a majority in aggregate Principal Amount of the outstanding Securities
by written notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of or
interest on any Security as specified in Section 4.01(a) and (b) or a Default in
respect of any term or provision of this Indenture that may not be amended or
modified without the consent of each Holder affected as provided in Section
9.02. The Issuer shall deliver to the Trustee an Officers' Certificate stating
that the
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requisite percentage of Holders have consented to such waiver and attaching
copies of such consents. In case of any such waiver, the Issuer, the Trustee and
the Holders shall be restored to their former positions and rights hereunder and
under the Securities, respectively. This paragraph of this Section 4.04 shall be
in lieu of (S) 316(a)(1)(B) of the TIA and such (S) 316(a)(1)(B) of the TIA is
hereby expressly excluded from this Indenture and the Securities, as permitted
by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 4.05. Control by Majority. Subject to Section 2.08, 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 exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights of
another Holder, it being understood that the Trustee shall have no duty (subject
to Section 6.01) to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders, or that may involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction. In the
event the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against any loss or expense caused by taking such action
or following such direction. This Section 4.05 shall be in lieu of (S)
316(a)(1)(A) of the TIA, and such (S) 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
Section 4.06. Limitation on Suits. A Holder may not pursue any remedy with
respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice of a continuing Event of
Default;
(b) the Holders of at least 25% in aggregate Principal Amount of the
outstanding Securities make a written request to the Trustee to pursue a remedy;
(c) such Holder or Holders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;
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(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in Principal Amount
of the outstanding Securities do not give the Trustee a direction which, in the
opinion of the Trustee, is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over such other Holder.
Section 4.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of or interest on a Security, on or after the respective due dates
expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 4.08. Collection Suit by Trustee. If an Event of Default in payment
of principal or interest specified in Section 4.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuer or any other obligor on the Securities for
the whole amount of principal and accrued interest remaining unpaid, together
with interest overdue on principal and to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate per annum borne by the Securities and 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.
Section 4.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Issuer (or any other obligor upon the Securities), its creditors
or its property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 6.06. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder
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thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and may be a member of the creditors' committee.
Section 4.10. Priorities. If the Trustee collects any money or property
pursuant to this Article 4, it shall pay out the money or property in the
following order:
First: to the Trustee for amounts due under Section 6.06;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
Third: to the Issuer.
The Trustee, upon prior written notice to the Issuer, may fix a record date and
payment date for any payment to the Holders pursuant to this Section 4.10.
Section 4.11. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 4.11 shall not apply to a suit
by the Trustee, a suit by a Holder or group of Holders of more than 10% in
aggregate Principal Amount of the outstanding Securities, or to any suit
instituted by any Holder for the enforcement or the payment of the principal or
interest on any Securities on or after the respective due dates expressed in the
Security.
ARTICLE 5
Subordination
Section 5.01. Agreement to Subordinate. The Issuer agrees, and each Holder
by accepting any Security agrees, that the Indebtedness evidenced by the
Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article 5, to the payment when due of all Senior Indebtedness
of the Issuer and that such subordination is for the benefit of and enforceable
by the holders of Senior Indebtedness. The Securities shall in all respects rank
pari passu with all other Subordinated Indebtedness of the Issuer, and only
Indebtedness of the Issuer which is Senior Indebtedness will rank senior to the
Securities in accordance with the provisions set forth herein. Unsecured
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Indebtedness is not deemed to be subordinate or junior to Secured Indebtedness
merely because it is unsecured, nor is any Indebtedness deemed to be subordinate
or junior to other Indebtedness merely because it matures after such other
Indebtedness. Secured Indebtedness is not deemed to be Senior Indebtedness
merely because it is secured.
Section 5.02. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Issuer upon a total or partial liquidation or
dissolution or reorganization or bankruptcy of or similar proceeding relating to
the Issuer or its property:
(a) holders of Senior Indebtedness of the Issuer shall be entitled to
receive payment in full in cash or Cash Equivalents of all Senior Indebtedness
of the Issuer before holders of Securities shall be entitled to receive any
payment of principal of or interest on or other amounts with respect to the
Securities from the Issuer; and
(b) until the Senior Indebtedness of the Issuer is paid in full, in cash or
Cash Equivalents, any payment or distribution to which Holders would be entitled
but for the provisions of this Article 5 shall be made to holders of Senior
Indebtedness as their interests may appear.
Section 5.03. Default on Senior Indebtedness. The Issuer may not pay the
principal of, premium (if any), or interest on, and other obligations with
respect to, the Securities or repurchase, redeem or otherwise retire any
Securities (collectively, "pay the Securities") if (i) any Senior Indebtedness
is not paid when due or (ii) any other default on Senior Indebtedness occurs and
the maturity of such Senior Indebtedness is accelerated in accordance with its
terms unless, in either case, (x) the default has been cured or waived or is no
longer continuing and/or any such acceleration has been rescinded or (y) such
Senior Indebtedness has been paid; provided, however, that the Issuer may pay
the Securities, subject to the provisions of Section 5.02, without regard to the
foregoing if the Issuer and the Trustee receive written notice approving such
payment from the Representatives of the Senior Indebtedness with respect to
which either of the events set forth in clause (i) or (ii) of this sentence has
occurred or is continuing. During the continuance of any default (other than a
default described in clause (i) or (ii) of the preceding sentence) with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof may
be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Issuer may not pay the Securities (except (i) in Qualified Capital
Stock issued by the Issuer to pay interest on the Securities or issued in
exchange for the Securities, (ii) in securities substantially identical to the
Securities issued by the Issuer in payment of interest accrued thereon or (iii)
in securities issued by the Issuer which are subordinated to the Senior
Indebtedness at least to the same extent as the Securities and having a Weighted
Average Life to Maturity at least equal to the remaining Weighted Average Life
to Maturity of the
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Securities) for a period (a "Payment Blockage Period") commencing upon the
receipt by the Trustee (with a copy to the Issuer) of written notice (a
"Blockage Notice") of such default from the Representative of the holders of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Issuer from the Person or Persons who gave such Blockage Notice, (ii) because
the default giving rise to such Blockage Notice has been cured, waived or is no
longer continuing or (iii) because such Designated Senior Indebtedness has been
repaid in full). Notwithstanding the provisions of the immediately preceding
sentence, but subject to the provisions of the first sentence of this Section
5.03 and the provisions of Section 5.02, the Issuer may resume payments on the
Securities after the end of such Payment Blockage Period. Not more than one
Blockage Notice may be given, and not more than one Payment Blockage Period may
occur, in any consecutive 360-day period, irrespective of the number of defaults
with respect to Designated Senior Indebtedness during such period. However, if
any Blockage Notice within such 360 day period is given by or on behalf of any
holders of Designated Senior Indebtedness (other than the agent under the Senior
Credit Facilities), the agent under the Senior Credit Facilities may give
another Blockage Notice within such period. In no event, however, may the total
number of days during which any Payment Blockage Period or Payment Blockage
Periods are in effect exceed 179 days in the aggregate during any 360
consecutive day period. No nonpayment default that existed or was continuing on
the date of delivery of any Blockage Notice to the Trustee shall be, or be made,
the basis for a subsequent Blockage Notice unless such default shall have been
cured or waived for a period of not less than 90 consecutive days.
Section 5.04. Acceleration of Payment of Securities. If payment of the
Securities is accelerated because of an Event of Default, the Issuer or the
Trustee shall promptly notify the holders of the Representative (if any) of any
issue of Designated Senior Indebtedness which is then outstanding; provided,
however, that the Issuer and the Trustee shall be obligated to notify such a
Representative (other than with respect to the Senior Credit Facilities) only if
such Representative has delivered or caused to be delivered an address for the
service of such a notice to the Issuer and the Trustee (and the Issuer and the
Trustee shall be obligated only to deliver the notice to the address so
specified). If a notice is required pursuant to the immediately preceding
sentence, the Issuer may not pay the Securities (except payment (i) in Qualified
Capital Stock issued by the Issuer to pay interest on the Securities or issued
in exchange for the Securities, (ii) in securities substantially identical to
the Securities issued by the Issuer in payment of interest accrued thereon or
(iii) securities issued by the Issuer which are subordinated to the Senior
Indebtedness at least to the same extent as the Securities and have a Weighted
Average Life to Maturity at least equal to the remaining Weighted Average Life
to Maturity of the Securities), until five Business Days after the respective
Representative of the Designated
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Senior Indebtedness receives notice (at the address specified in the preceding
sentence) of such acceleration and thereafter may pay the Securities only if the
provisions of this Article 5 otherwise permit payment at that time.
Section 5.05. When Distribution Must be Paid Over. If a distribution is
made to the Trustee or to Holders that because of this Article 5 should not have
been made to them, the Trustee or the Holders who receive such distribution
shall hold it in trust for holders of Senior Indebtedness and promptly pay it
over to them as their respective interests may appear; provided, however, that
the liabilities of the Trustee under this Section 5.05 are limited by Section
5.14.
Section 5.06. Subrogation. After all Senior Indebtedness is paid in full
and until the Securities are paid in full, Holders shall be subrogated to the
rights of holders of Senior Indebtedness to receive distributions applicable to
Senior Indebtedness. A distribution made under this Article 5 to holders of
Senior Indebtedness which otherwise would have been made to Holders is not, as
between the Issuer and the Holders, a payment by |
