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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1
to
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-10308
MARCH 21, 2001 (FEBRUARY 13, 2001)
Date of Report (Date Of Earliest Event Reported)
CENDANT CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 06-0918165
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
9 WEST 57TH STREET, NEW YORK, NY 10019
(Address of Principal Executive Office) (Zip Code)
(212) 413 1800
(Registrant's telephone number, including area code)
NONE
(Former name, former address and former fiscal year, if applicable)
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
Exhibit
No. Description
- ------- -----------
4.1 Final copy of the Indenture, dated as of February 13,
2001, between Cendant Corporation and The Bank of New
York, as trustee.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunder duly authorized.
CENDANT CORPORATION
By: /s/ Eric J.Bock
----------------------------------
Eric J. Bock
Senior Vice President - Law
and Corporate Secretary
Date: March 21, 2001
CENDANT CORPORATION
CURRENT REPORT ON FORM 8-K/A
REPORT DATED MARCH 21, 2001 (FEBRUARY 13, 2001)
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4.1 Final copy of the Indenture, dated as of February 13,
2001, between Cendant Corporation and The Bank of New
York, as trustee.
EXHIBIT 4.1
Cendant Corporation
Zero Coupon Senior Convertible Contingent
Debt Securities due 2021
----------------------------------------------------------
INDENTURE
Dated as of February 13, 2001
----------------------------------------------------------
The Bank of New York
TRUSTEE
----------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions....................................................4
Section 1.2 Other Definitions..............................................7
Section 1.3 Incorporation by Reference of Trust Indenture Act..............8
Section 1.4 Rules of Construction..........................................9
Section 1.5 Acts of Holders................................................9
ARTICLE II THE SECURITIES
Section 2.1 Form and Dating...............................................10
Section 2.2 Execution and Authentication..................................11
Section 2.3 Registrar, Paying Agent and Conversion Agent..................12
Section 2.4 Paying Agent to Hold Money and Securities in Trust............12
Section 2.5 Securityholder Lists..........................................12
Section 2.6 Transfer and Exchange.........................................13
Section 2.7 Replacement Securities........................................14
Section 2.8 Outstanding Securities; Determinations of Holders'
Action......................................................15
Section 2.9 Temporary Securities..........................................15
Section 2.10 Cancellation..................................................16
Section 2.11 Persons Deemed Owners.........................................16
Section 2.12 Global Securities.............................................16
Section 2.13 CUSIP Numbers.................................................21
ARTICLE III REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem; Notices to Trustee...........................21
Section 3.2 Selection of Securities to Be Redeemed........................21
Section 3.3 Notice of Redemption..........................................22
Section 3.4 Effect of Notice of Redemption................................22
Section 3.5 Deposit of Redemption Price...................................22
Section 3.6 Securities Redeemed in Part...................................23
Section 3.7 [Reserved]....................................................23
Section 3.8 Purchase of Securities at Option of the Holder................23
Section 3.9 Purchase of Securities at Option of the Holder
upon Change in Control......................................29
Section 3.10 Effect of Purchase Notice or Change in Control
Purchase Notice.............................................32
Section 3.11 Deposit of Purchase Price or Change in Control
Purchase Price..............................................33
Section 3.12 Securities Purchased in Part..................................33
Section 3.13 Covenant to Comply With Securities Laws Upon
Purchase of Securities......................................33
Section 3.14 Repayment to the Company......................................33
ARTICLE IV COVENANTS
Section 4.1 Payment of Securities.........................................34
Section 4.2 SEC and Other Reports.........................................34
Section 4.3 Compliance Certificate........................................35
Section 4.4 Further Instruments and Acts..................................35
Section 4.5 Maintenance of Office or Agency...............................35
Section 4.6 Delivery of Certain Information...............................35
Section 4.7 Calculation of Original Issue Discount........................36
ARTICLE V SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets.....................36
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1 Events of Default.............................................37
Section 6.2 Acceleration..................................................38
Section 6.3 Other Remedies................................................39
Section 6.4 Waiver of Past Defaults.......................................39
Section 6.5 Control by Majority...........................................39
Section 6.6 Limitation on Suits...........................................40
Section 6.7 Rights of Holders to Receive Payment..........................40
Section 6.8 Collection Suit by Trustee....................................40
Section 6.9 Trustee May File Proofs of Claim..............................40
Section 6.10 Priorities....................................................41
Section 6.11 Undertaking for Costs.........................................41
Section 6.12 Waiver of Stay, Extension or Usury Laws.......................41
ARTICLE VII TRUSTEE
Section 7.1 Duties of Trustee.............................................42
Section 7.2 Rights of Trustee.............................................43
Section 7.3 Individual Rights of Trustee..................................44
Section 7.4 Trustee's Disclaimer..........................................44
Section 7.5 Notice of Defaults............................................45
Section 7.6 Reports by Trustee to Holders.................................45
Section 7.7 Compensation and Indemnity....................................45
Section 7.8 Replacement of Trustee........................................46
Section 7.9 Successor Trustee by Merger...................................46
Section 7.10 Eligibility; Disqualification.................................46
Section 7.11 Preferential Collection of Claims Against Company.............47
ARTICLE VIII DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities..........................47
Section 8.2 Repayment to the Company......................................47
ARTICLE IX AMENDMENTS
Section 9.1 Without Consent of Holders....................................47
Section 9.2 With Consent of Holders.......................................48
Section 9.3 Compliance with Trust Indenture Act...........................48
Section 9.4 Revocation and Effect of Consents, Waivers and
Actions.....................................................48
Section 9.5 Notation on or Exchange of Securities.........................49
Section 9.6 Trustee to Sign Supplemental Indentures.......................49
Section 9.7 Effect of Supplemental Indentures.............................49
ARTICLE X CONVERSIONS
Section 10.1 Conversion Privilege.........................................49
Section 10.2 Conversion Procedure.........................................50
Section 10.3 Fractional Shares............................................50
Section 10.4 Taxes on Conversion..........................................51
Section 10.5 Company to Provide Stock.....................................51
Section 10.6 Adjustment for Change In Capital Stock.......................51
Section 10.7 Adjustment for Rights Issue..................................52
Section 10.8 Adjustment for Other Distributions...........................53
[Section 10.9 When Adjustment May Be Deferred..............................55
Section 10.10 When No Adjustment Required..................................55
Section 10.11 Notice of Adjustment.........................................56
Section 10.12 Voluntary Increase...........................................56
Section 10.13 Notice of Certain Transactions...............................56
Section 10.14 Reorganization of Company; Special Distributions.............56
Section 10.15 Company Determination Final..................................57
Section 10.16 Trustee's Adjustment Disclaimer..............................57
Section 10.17 Simultaneous Adjustments.....................................57
Section 10.18 Successive Adjustments.......................................57
ARTICLE XI MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls.................................58
Section 11.2 Notices......................................................58
Section 11.3 Communication by Holders with Other Holders..................58
Section 11.4 Certificate and Opinion as to Conditions Precedent...........59
Section 11.5 Statements Required in Certificate or Opinion................59
Section 11.6 Separability Clause..........................................59
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar..............................................59
Section 11.8 Legal Holidays...............................................59
Section 11.9 GOVERNING LAW................................................59
Section 11.10 No Recourse Against Others...................................60
Section 11.11 Successors...................................................60
Section 11.12 Multiple Originals...........................................60
INDENTURE dated as of February 13, 2001 between CENDANT
CORPORATION, a Delaware corporation ("Company"), and THE BANK OF NEW YORK,
a New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Company's Zero
Coupon Senior Convertible Contingent Debt Securities due 2021:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"144A Global Security" means a permanent Global Security in the
form of the Security attached hereto as Exhibit A-1, and that is deposited
with and registered in the name of the Depositary, representing Securities
sold in reliance on Rule 144A under the Securities Act.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of
this definition, "control" when used with respect to any specified person
means the power to direct or cause the direction of the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to
the extent applicable to such transaction and as in effect from time to
time.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Business Day" means, with respect to any Security, a day that
in the City of New York, is not a day on which banking institutions are
authorized by law or regulation to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"CD Common Stock" shall mean the CD common stock, $0.01 par
value per share, of the Company as they exist on the date of this Indenture
or any other shares of Capital Stock of the Company into which such CD
common stock shall be reclassified or changed.
"Certificated Securities" means Securities that are in the form
of the Securities attached hereto as Exhibit A-2.
"Company" means the party named as the "Company" 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.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any two Officers.
"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, Floor 21W, New York, New York 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 Company, 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 Company).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Global Securities" means Securities that are in the form of
the Securities attached hereto as Exhibit A-1, and to the extent that such
Securities are required to bear the Legend required by Section 2.6, such
Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, without duplication, the principal or
face amount of (i) all obligations for borrowed money, (ii) all obligations
evidenced by debentures, notes or other similar instruments, (iii) all
obligations in respect of letters of credit or bankers acceptances or
similar instruments (or reimbursement obligations with respect thereto),
(iv) all obligations to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (v) all obligations as lessee which are capitalized in accordance
with generally accepted accounting principles, and (vi) all Indebtedness of
others guaranteed by the Company or any of its Subsidiaries or for which
the Company or any of its Subsidiaries is legally responsible or liable
(whether by agreement to purchase indebtedness of, or to supply funds or to
invest in, others).
"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.
"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.
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which the
Security is sold as set forth on the face of the Security.
"Non-Recourse Indebtedness" means Indebtedness upon the
enforcement of which recourse may be had by the holder(s) thereof only to
identified assets of the Company and not to the Company personally.
"Officer" means the Chairman of the Board, the Vice Chairman,
the Chief Executive Officer, the President, any Executive Vice President,
any Senior Vice President, any Vice President, the Treasurer or the
Secretary or any Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing
the information specified in Sections 11.4 and 11.5, signed in the name of
the Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.3 shall be signed by an authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.4 and 11.5, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel
to, the Company or the Trustee.
"Original Issue Discount" of any Security means the difference
between the Issue Price and the Principal Amount at Maturity of the
Security as set forth on the face of the Security.
"person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government or any agency or
political subdivision thereof.
"Principal Amount at Maturity" of a Security means the
Principal Amount at Maturity as set forth on the face of the Security.
"Redemption Date" or "redemption date" shall mean the date
specified for redemption of the Securities in accordance with the terms of
the Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning
set forth in paragraph 5 of the Securities.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits
A-1 and A-2 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.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's Zero Coupon Senior
Convertible Contingent Debt Securities (CODESsm) due 2021, as amended or
supplemented from time to time, issued under this Indenture.
"Securityholder" or "Holder" means a person in whose name a
Security is registered on the Registrar's books.
"Stated Maturity", when used with respect to any Security,
means the date specified in such Security as the fixed date on which an
amount equal to the Principal Amount at Maturity of such Security is due
and payable.
"Subsidiary" means any person of which at least a majority of
the outstanding Voting Stock shall at the time directly or indirectly be
owned or controlled by the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries.
"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 CD Common Stock
is not listed on the New York Stock Exchange, on the principal other
national or regional securities exchange on which the CD Common Stock then
is listed or, if the CD Common Stock is not listed on a national or
regional securities exchange, on the National Association of Securities
Dealers Automated Quotation System or, if the CD Common Stock is not quoted
on the National Association of Securities Dealers Automated Quotation
System, on the principal other market on which the CD Common Stock is then
traded.
"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.
"Voting Stock" of a person means Capital Stock of such person
of the class or classes pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such person
(irrespective of whether or not at the time Capital Stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 1.2 Other Definitions.
Term Section: Defined in:
"Agent Members"........................... 2.12(e)
"Associate"............................... 3.9(a)
"Average Sale Price"...................... 10.7
"beneficial owner"........................ 3.9(a)
"cash".................................... 3.8(b)
"Change in Control"....................... 3.9(a)
"Change in Control Purchase Date"......... 3.9(a)
"Change in Control Purchase Notice"....... 3.9(a)
"Change in Control Purchase Price"........ 3.9(a)
"Company Notice".......................... 3.8(e)
"Company Notice Date"..................... 3.8(c)
"Conversion Agent"........................ 2.3
"Conversion Date"......................... 10.2
"Conversion Rate"......................... 10.1
"Depositary".............................. 2.1(a)
"Event of Default"........................ 6.1
"Exchange Act"............................ 3.8(d)
"Exchange Party".......................... 10.2
"Ex-Dividend Time"........................ 10.1
"Extraordinary Cash Dividend"............. 10.8
"Institutional Accredited Investors"...... 2.1(b)
"Legal Holiday"........................... 11.8
"Legend".................................. 2.6(f)
"Market Price"............................ 3.8(d)
"Notice of Default"....................... 6.1
"Paying Agent"............................ 2.3
"Purchase Date"........................... 3.8(a)
"Purchase Notice"......................... 3.8(a)
"Purchase Price".......................... 3.8(a)
"QIB"..................................... 2.1(a)
"Registrar"............................... 2.3
"Rule 144A Information"................... 4.6
"Sale Price".............................. 3.8(d)
"Securities Act".......................... 3.8(d)
"Spinoff"................................. 10.8
"Time of Determination"................... 10.1
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
Section 1.4 Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
Section 1.5 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 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 Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of 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 conclusive in favor of the Trustee and the Company, 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 by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to such officer
the execution thereof. Where such execution is by a signer acting in a
capacity other than such signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the 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 Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of
Exhibits A-1 and A-2, which are a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock exchange
rule or usage (provided that any such notation, legend or endorsement
required by usage is in a form acceptable to the Company). The Company
shall provide any such notations, legends or endorsements to the Trustee in
writing. Each Security shall be dated the date of its authentication.
(a) 144A Global Securities. Securities offered and sold within
the United States to qualified institutional buyers as defined in Rule 144A
("QIBs") in reliance on Rule 144A shall be issued, initially in the form of
a 144A Global Security, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary and registered in
the name of The Depository Trust Company ("DTC") or the nominee thereof
(such depositary, or any successor thereto, and any such nominee being
hereinafter referred to as the "Depositary"), duly executed by the Company
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the 144A Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee
and the Depositary as hereinafter provided.
(b) Global Securities in General. 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 amount of
outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and conversions.
Any adjustment of the aggregate principal amount of a Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by
Section 2.12 hereof and shall be made on the records of the Trustee and the
Depositary.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only
to Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(d), authenticate and deliver initially one or more
Global Securities that (a) shall be registered in the name of the
Depositary, (b) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions and (c) shall bear legends
substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(d) Certificated Securities. Securities not issued as interests
in the Global Securities will be issued in certificated form substantially
in the form of Exhibit A-2 attached hereto.
Section 2.2 Execution and Authentication. The Securities shall
be executed on behalf of the Company by any Officer. The signature of the
officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Securities the
proper Officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such
offices at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
The Trustee shall authenticate and deliver Securities for
original issue in an aggregate Principal Amount at Maturity of up to
$1,479,258,000 upon one or more Company Orders without any further action
by the Company. The aggregate Principal Amount at Maturity of Securities
outstanding at any time may not exceed the amount set forth in the
foregoing sentence, except as provided in Section 2.7.
The Securities shall be issued only in registered form without
coupons and only in denominations of $1,000 of Principal Amount at Maturity
and any integral multiple thereof.
Section 2.3 Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Securities may be presented for purchase or payment
("Paying Agent") and an office or agency where Securities may be presented
for conversion ("Conversion Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one
or more co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.5. The term
Conversion Agent includes any additional conversion agent, including any
named pursuant to Section 4.5.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent, Conversion Agent or co-registrar (other
than the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee
of the name and address of any such agent. If the Company fails to maintain
a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.7. The Company or any Subsidiary or an Affiliate of either of
them may act as Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Securities.
Section 2.4 Paying Agent to Hold Money and Securities in Trust.
Except as otherwise provided herein, on or prior to each due date of
payments in respect of any Security, the Company shall deposit with the
Paying Agent a sum of money (in immediately available funds if deposited on
the due date) or CD Common Stock sufficient to make such payments when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Securityholders or the Trustee all money and CD Common Stock
held by the Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company in
making any such payment. At any time during the continuance of any such
default, the Paying Agent shall, upon the written request of the Trustee,
forthwith pay to the Trustee all money and CD Common Stock so held in
trust. If the Company, a Subsidiary or an Affiliate of either of them acts
as Paying Agent, it shall segregate the money and CD Common Stock held by
it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money and CD Common Stock held
by it to the Trustee and to account for any funds and CD Common Stock
disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money or CD Common Stock.
Section 2.5 Securityholder 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 Securityholders. If the
Trustee is not the Registrar, the Company shall cause to be furnished to
the Trustee at least semiannually on May 1 and November 1 a listing of
Securityholders dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Securityholders.
Section 2.6 Transfer and Exchange. (a) Subject to Section 2.12
hereof, (a) upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's
attorney duly authorized in writing, at the office or agency of the Company
designated as Registrar or co-registrar pursuant to Section 2.3, the
Company 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 at Maturity. The Company shall not charge a
service charge for any registration of transfer or exchange, but the
Company 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 Securityholder
requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate Principal Amount at Maturity, upon surrender of the Securities to
be exchanged, together with a written instrument of transfer satisfactory
to the Registrar duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
The Company 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 Change in Control 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 2.6(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 2.3 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.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing
the legends set forth on the form of Security attached hereto as Exhibits
A-1 and A-2 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 Company and the Registrar
such satisfactory evidence, which shall include an Opinion of Counsel, as
may be reasonably required by the Company 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
Company 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 Company, 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 Company, the Legend shall be reinstated.
Section 2.7 Replacement Securities. If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company 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 Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee shall 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 at Maturity, 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 Company pursuant to Article 3 hereof, the Company 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
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all 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 2.8 Outstanding Securities; Determinations of Holders'
Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those paid
pursuant to Section 2.7 delivered to it for cancellation and those
described in this Section 2.8 as not outstanding. A Security does not cease
to be outstanding because the Company or an Affiliate thereof holds the
Security; provided, however, that in determining whether the Holders of the
requisite Principal Amount at Maturity of Securities have given or
concurred in any request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company 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 6 and 9).
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following the Purchase Date or
a Change in Control Purchase Date, or on Stated Maturity, money or
securities, if permitted hereunder, sufficient to pay Securities payable on
that date, then immediately after such Redemption Date, Purchase Date,
Change in Control Purchase Date or Stated Maturity, as the case may be,
such Securities shall cease to be outstanding and Original Issue Discount
and interest, 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 10, then
from and after the time of conversion on the Conversion Date, such Security
shall cease to be outstanding and Original Issue Discount and interest, if
any, shall cease to accrue on such Security.
Section 2.9 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company 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 Company 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 Company designated for such
purpose pursuant to Section 2.3, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like Principal Amount at Maturity 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 Company pursuant to Article 3, conversion,
redemption or registration of transfer or exchange (other than Securities
exchanged pursuant to Section 10.2) shall, if surrendered to any person
other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly cancelled by the Trustee. The
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation or that any Holder has converted
pursuant to Article 10. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be disposed of by the Trustee in accordance with
the Trustee's customary procedure.
Section 2.11 Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name
such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of the Security or the payment of any
Redemption Price, Purchase Price or Change in Control 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 Company, the Trustee nor any agent of the Company 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, (A) transfers of a Global
Security, in whole or in part, shall be made only in accordance with
Section 2.6 and Section 2.12(a)(i), (B) transfers of a beneficial interest
in a Global Security for a Certificated Security shall comply with Section
2.6 and Section 2.12(a)(ii) below, and (C) transfers of a Certificated
Security shall comply with Section 2.6 and Section 2.12(a)(iii) and (iv)
below.
(i) Transfer of Global Security. 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 (i) 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 or the Securities unless and until such Security
has been registered in the name of such Person. Nothing in this
Section 2.12(a)(i) shall prohibit or render ineffective any transfer
of a beneficial interest in a Global Security effected in accordance
with the other provisions of this Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Security for a Certificated Security. A beneficial interest in
a Global Security may not be exchanged for a Certificated Security
except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a transfer of a beneficial interest in a
Global Security in accordance with Applicable Procedures for a
Certificated Security in the form satisfactory to the Trustee,
together with:
(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit B-1;
(B) written instructions to the Trustee to make, or direct
the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect a
decrease in the aggregate Principal Amount of the
Securities represented by the Global Security, such
instructions to contain information regarding the
Depositary account to be credited with such decrease; and
(C) if the Company or Registrar so requests, an opinion of
counsel or other evidence reasonably satisfactory to them
as to the compliance with the restrictions set forth in the
Legend, then the Trustee shall cause, or direct the
Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary
and the Registrar, the aggregate Principal Amount at
Maturity of Securities represented by the Global Security
to be decreased by the aggregate Principal Amount at
Maturity of the Certificated Security to be issued, shall
issue such Certificated Security and shall debit or cause
to be debited to the account of the Person specified in
such instructions a beneficial interest in the Global
Security equal to the Principal Amount at Maturity of the
Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities.
When Certificated Securities are presented to the Registrar with a
request:
(y) to register the transfer of such Certificated Securities;
or
(z) to exchange such Certificated Securities for an equal
Principal Amount at Maturity of Certificated Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided,
however, that the Certificated Securities surrendered for transfer or
exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to
the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to
an effective registration statement under the Securities
Act or pursuant to clause (A), (B) or (C) below, and are
accompanied by the following additional information and
documents, as applicable:
(A) if such Certificated Securities are being delivered to
the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Certificated Securities are being transferred
to the Company, a certification to that effect; or
(C) if such Certificated Securities are being transferred
pursuant to an exemption from registration (i) a
certification to that effect (in the form set forth in
Exhibit B-1, if applicable) and (ii) if the Company or
Registrar so requests, an opinion of counsel or other
evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security
for a Beneficial Interest in a Global Security. A Certificated
Security may not be exchanged for a beneficial interest in a Global
Security except upon satisfaction of the requirements set forth
below.
Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(I) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B-1, that such
Certificated Security is being transferred to a QIB in
accordance with Rule 144A; and
(II) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect an
increase in the aggregate Principal Amount at Maturity of the
Securities represented by the Global Security, such
instructions to contain information regarding the Depositary
account to be credited with such increase, then the Trustee
shall cancel such Certificated Security and cause, or direct
the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and
the Registrar, the aggregate Principal Amount at Maturity of
Securities represented by the Global Security to be increased
by the aggregate Principal Amount at Maturity of the
Certificated Security to be exchanged, and shall credit or
cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Global Security
equal to the Principal Amount at Maturity of the Certificated
Security so cancelled. If no Global Securities are then
outstanding, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of
an Officers' Certificate, a new Global Security in the
appropriate Principal Amount at Maturity.
(b) Subject to the succeeding paragraph, every Security shall
be subject to the restrictions on transfer provided in the Legend including
the delivery of an opinion of counsel, if so provided. Whenever any
Restricted Security is presented or surrendered for registration of
transfer or for exchange for a Security registered in a name other than
that of the Holder, such Security must be accompanied by a certificate in
substantially the form set forth in Exhibit B-1, dated the date of such
surrender and signed by the Holder of such Security, as to compliance with
such restrictions on transfer. The Registrar shall not be required to
accept for such registration of transfer or exchange any Security not so
accompanied by a properly completed certificate.
(c) 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 2.12 (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 Company, addressed to the
Company and in form acceptable to the Company, 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 at Maturity, which shall not bear the
restrictive Legend. The Company shall inform the Trustee of the effective
date of any registration statement registering the Securities under the
Securities Act. The Trustee 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.
(d) As used in the preceding two paragraphs of this Section
2.12, the term "transfer" encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.
(e) The provisions of clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or
the Securities, except as provided in Section 2.12(a)(ii),
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 Company that it is unwilling or unable to
continue as Depositary for such Global Security or such
Depositary has ceased to be a "clearing agency" registered
under the Exchange Act, and a successor Depositary is not
appointed by the Company within 90 days or (ii) 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
(ii) 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.
(2) 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 at Maturity 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, as 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 at Maturity 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.
(3) Subject to the provisions of clause (5) 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.
(4) In the event of the occurrence of any of the events
specified in clause (1) above, the Company will promptly
make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered
form, without interest coupons.
(5) 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 Company, the Trustee and any agent of the
Company 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 Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification,
proxy or other authorization furnished by 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 CUSIP Numbers. The Company may issue the
Securities with one or more "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 Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem; Notices to Trustee. The Company,
at its option, may redeem the Securities in accordance with the provisions
of paragraph 5 of the Securities. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, the Principal Amount at Maturity
of Securities to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for
in this Section 3.1 by a Company Order, at least 20 days before the
Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).
Section 3.2 Selection of Securities to Be Redeemed. If less
than all the Securities are to be redeemed, unless the procedures of the
Depositary provide otherwise, the Trustee shall select the Securities to be
redeemed on a pro rata basis (so long as such method is not prohibited by
the rules of any stock exchange on which the Securities are then listed).
The Trustee shall make the selection at least 15 days but not more than 60
days before the Redemption Date from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of
the Principal Amount at Maturity of Securities that have denominations
larger than $1,000.
Securities and portions of them the Trustee selects shall be in
Principal Amounts at Maturity of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The Trustee
shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall
be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed may be treated by the Trustee as outstanding for the purpose of
such selection.
Section 3.3 Notice of Redemption. At least 15 days but not
more than 60 days before a Redemption Date, the Company shall mail a notice
of redemption by first-class mail, postage prepaid, to each Holder of
Securities to be redeemed.
The notice shall identify the Securities to be redeemed
(including the CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Securities called for redemption may be converted at
any time before the close of business on the date that is
two Business Days prior to the Redemption Date;
(6) that Holders who want to convert Securities must satisfy
the requirements set forth in paragraph 8 of the
Securities;
(7) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(8) if fewer than all the outstanding Securities are to be
redeemed, the certificate numbers, if any, and Principal
Amounts at Maturity of the particular Securities to be
redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price, Original Issue Discount on Securities
called for redemption will cease to accrue on and after the
Redemption Date; and
(10) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided
that the Company makes such request at least three Business Days prior to
the date by which such notice of redemption must be given to Holders in
accordance with this Section 3.3.
Section 3.4 Effect of Notice of Redemption. Once notice of
redemption is given, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the
notice except for Securities which are converted in accordance with the
terms of this Indenture. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price stated in the notice.
Section 3.5 Deposit of Redemption Price. Prior to 10:00 a.m.
(New York City Time), on the Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary or an Affiliate of
either of them is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the Redemption Price of all Securities to be
redeemed on that date other than Securities or portions of Securities
called for redemption which on or prior thereto have been delivered by the
Company to the Trustee for cancellation or have been converted. The Paying
Agent shall as promptly as practicable return to the Company any money not
required for that purpose because of conversion of Securities pursuant to
Article 10. If such money is then held by the Company in trust and is not
required for such purpose it shall be discharged from such trust.
Section 3.6 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder a new Security in an
authorized denomination equal in Principal Amount at Maturity to the
unredeemed portion of the Security surrendered.
Section 3.7 [Reserved].
Section 3.8 Purchase of Securities at Option of the Holder. (a)
General. Securities shall be purchased by the Company pursuant to paragraph
6 of the Securities at the option of the Holder as of February 13, 2004,
February 13, 2009 and February 13, 2014 (each, a "Purchase Date"), at the
purchase price set forth below (each, a "Purchase Price", as applicable):
Purchase Price per $1,000
Purchase Date Principal Amount at Maturity
------------- ----------------------------
February 13, 2004 $655.49
February 13, 2009 $742.20
February 13, 2014 $840.37
The foregoing Purchase Prices are equal to the Issue Price plus accrued
Original Issue Discount to the applicable Purchase Date. If, prior to a
Purchase Date, the Securities have been converted to semiannual coupon
Securities following the occurrence of a Tax Event pursuant to paragraph 1
of the Securities, the Purchase Price will be equal to the restated
principal amount plus accrued and unpaid interest from the date of
conversion to semiannual coupon Securities to the Purchase Date. Purchases
of Securities hereunder shall be made, at the option of the Holder thereof,
upon:
(1) delivery to the Paying Agent by the Holder of a written
notice of purchase (a "Purchase Notice") at any time from
the opening of business on the date that is 20 Business
Days prior to a Purchase Date until the close of business
on the third Business Day prior to such Purchase Date
stating:
(A) the certificate number of the Security which the Holder
will deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased,
which portion must be in principal amounts of maturity of
$1,000 or an integral multiple thereof,
(C) that such Security shall be purchased as of the
Purchase Date pursuant to the terms and conditions
specified in paragraph 6 of the Securities and in this
Indenture, and
(D) in the event the Company elects, pursuant to Section
3.8(b), to pay the Purchase Price in whole or in part, in
shares of CD Common Stock but such portion of the Purchase
Price shall ultimately be payable to such Holder entirely
in cash because any of the conditions to payment of the
Purchase Price in shares of CD Common Stock is not
satisfied prior to the close of business on the Purchase
Date, as set forth in Section 3.8(d), whether such Holder
elects (i) to withdraw such Purchase Notice as to some or
all of the Securities to which such Purchase Notice relates
(stating the Principal Amount at Maturity and certificate
numbers, if any, of the Securities as to which such
withdrawal shall relate), or (ii) to receive cash in
respect of the entire Purchase Price for all Securities (or
portions thereof) to which such Purchase Notice relates;
and
(E) delivery of such Security to the Paying Agent prior to,
on or after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the
Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Section
3.8 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in
the related Purchase Notice, as determined by the Company.
If a Holder, in such Holder's Purchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms
of Section 3.10, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 3.8(a)(1), such Holder shall be
deemed to have elected to receive cash in respect of the Purchase Price for
all Securities subject to such Purchase Notice in the circumstances set
forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.8, a portion of a Security, if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.8 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
the Purchase Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice contemplated by this
Section 3.8(a) shall have the right to withdraw such Purchase Notice at any
time prior to the close of business on the Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal
thereof.
(b) Company's Right to Elect Manner of Payment of Purchase
Price for Payment. The Securities to be purchased on any Purchase Date
pursuant to Section 3.8(a) may be paid for, at the election of the Company,
in U.S. legal tender ("cash") or shares of CD Common Stock, or in any
combination of cash and shares of CD Common Stock, subject to the
conditions set forth in Sections 3.8(c) and (d). The Company shall
designate, in the Company Notice delivered pursuant to Section 3.8(e),
whether the Company will purchase the Securities for cash or shares of CD
Common Stock, or, if a combination thereof, the percentages of the Purchase
Price of Securities in respect of which it will pay in cash or shares of CD
Common Stock; provided that the Company will pay cash for fractional
interests in shares of CD Common Stock. For purposes of determining the
existence of potential fractional interests, all Securities subject to
purchase by the Company held by a Holder shall be considered together (no
matter how many separate certificates are to be presented). Each Holder
whose Securities are purchased pursuant to this Section 3.8 shall receive
the same percentage of cash or shares of CD Common Stock in payment of the
Purchase Price for such Securities, except (i) as provided in Section
3.8(d) with regard to the payment of cash in lieu of fractional shares of
CD Common Stock and (ii) in the event that the Company is unable to
purchase the Securities of a Holder or Holders for shares of CD Common
Stock because any necessary qualifications or registrations of the shares
of CD Common Stock under applicable state securities laws cannot be
obtained, the Company may purchase the Securities of such Holder or Holders
for cash. The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be
paid once the Company has given its Company Notice to Securityholders
except pursuant to this Section 3.8(b) or pursuant to Section 3.8(d) in the
event of a failure to satisfy, prior to the close of business on the
Purchase Date, any condition to the payment of the Purchase Price, in whole
or in part, in CD Common Stock.
At least three Business Days before each Company Notice Date,
the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.8(e),
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in CD Common Stock, that the conditions
to such manner of payment set forth in Section 3.8(d) have been or
will be complied with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.8(e).
(c) Purchase with Cash. At the option of the Company, the
Purchase Price of Securities in respect of which a Purchase Notice pursuant
to Section 3.8(a) has been given, or a specified percentage thereof, may be
paid by the Company with cash equal to the aggregate Purchase Price of such
Securities. The Purchase Price of Securities in respect of which a Purchase
Notice pursuant to Section 3.8(a) has been given shall, for all other
Purchase Dates, be paid in cash. The Company Notice, as provided in Section
3.8(e), shall be sent to Holders (and to beneficial owners as required by
applicable law) not less than 20 Business Days prior to such Purchase Date
(the "Company Notice Date").
(d) Payment by Issuance of shares of CD Common Stock. At the
option of the Company, the Purchase Price of Securities in respect of which
a Purchase Notice pursuant to Section 3.8(a) has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a number
of shares of CD Common Stock equal to the quotient obtained by dividing (i)
the amount of cash to which the Securityholders would have been entitled
had the Company elected to pay all or such specified percentage, as the
case may be, of the Purchase Price of such Securities in cash by (ii) the
Market Price of shares of CD Common Stock, subject to the next succeeding
paragraph.
The Company will not issue a fractional shares of CD Common
Stock in payment of the Purchase Price. Instead the Company will pay cash
for the current market value of the fractional share. The current market
value of a fraction of a share shall be determined by multiplying the
Market Price by such fraction and rounding the product to the nearest whole
cent. It is understood that if a Holder elects to have more than one
Security purchased, the number of shares of CD Common Stock shall be based
on the aggregate amount of Securities to be purchased.
If the Company elects to purchase the Securities by the
issuance of shares of CD Common Stock, the Company Notice, as provided in
Section 3.8(e), shall be sent to the Holders (and to beneficial owners as
required by applicable law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase
Securities through the issuance of shares of CD Common Stock shall be
conditioned upon:
(i) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of election to purchase all or a specified percentage of the
Securities with shares of CD Common Stock as provided herein;
(ii) the registration of such shares of CD Common Stock
under the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), in each case, if required;
(iii) such shares of CD Common Stock shall have been listed
on the principal national securities exchange (currently the New York
Stock Exchange) on which the CD Common Stock is listed;
(iv) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate
and an Opinion of Counsel each stating that (A) the terms of the
issuance of the shares of CD Common Stock are in conformity with this
Indenture and (B) the shares of CD Common Stock to be issued by the
Company in payment of the Purchase Price in respect of Securities
have been duly authorized and, when issued and delivered pursuant to
the terms of this Indenture in payment of the Purchase Price in
respect of the Securities, will be validly issued, fully paid and
non-assessable and, to the best of such counsel's knowledge, free
from preemptive rights, and, in the case of such Officers'
Certificate, stating that conditions above and the condition set
forth in the second succeeding sentence have been satisfied and, in
the case of such Opinion of Counsel, stating that conditions above
has been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of CD Common Stock to be issued for each $1,000 Principal Amount at
Maturity of Securities and the Sale Price of a share of CD Common Stock on
each trading day during the period commencing on the first trading day of
the period during which the Market Price is calculated and ending on the
third Business Day prior to the applicable Purchase Date. The Company may
pay the Purchase Price (or any portion thereof) in shares of CD Common
Stock only if the information necessary to calculate the Market Price is
published in a daily newspaper of national circulation. If the foregoing
conditions are not satisfied with respect to a Holder or Holders prior to
the close of business on the Purchase Date and the Company has elected to
purchase the Securities pursuant to this Section 3.8 through the issuance
of shares of CD Common Stock, the Company shall pay the entire Purchase
Price of the Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Sale Prices of the
shares of CD Common Stock for the five trading day period ending on (if the
third Business Day prior to the applicable Purchase Date is a trading day,
or if not, then on the last trading day prior to) the third Business Day
prior to the applicable Purchase Date, appropriately adjusted to take into
account the occurrence, during the period commencing on the first of such
trading days during such five trading day period and ending on such
Purchase Date, of any event described in Section 10.6, 10.7 or 10.8;
subject, however, to the conditions set forth in Sections 10.9 and 10.10.
The "Sale Price" of the shares of CD Common Stock on any date
means the closing per share sale price (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and average ask prices) on such
date as reported in the composite transactions for the principal United
States securities exchange on which the shares of CD Common Stock are
traded or, if the shares of CD Common Stock are not listed on a United
States national or regional securities exchange, as reported by the
National Association of Securities Dealers Automated Quotation System. In
the absence of such quotations, the Company shall be entitled to determine
the sales price on the basis of such quotations as it considers
appropriate.
Upon determination of the actual number of shares of CD Common
Stock to be issued for each $1,000 Principal Amount at Maturity of
Securities, the Company will publish such determination on the Company's
Web site on the World Wide Web.
(e) Notice of Election. In connection with any purchase of
Securities pursuant to paragraph 6 of the Securities, the Company shall
give notice to Holders setting forth information specified in this Section
3.8(e) (the "Company Notice").
In the event the Company has elected to pay the Purchase Price
(or a specified percentage thereof) with shares of CD Common Stock, the
Company Notice shall:
(1) state that each Holder will receive shares of CD Common
Stock with a Market Price determined as of a specified date
prior to the Purchase Date equal to such specified
percentage of the Purchase Price of the Securities held by
such Holder (except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the Market Price of the
shares of CD Common Stock; and
(3) state that because the Market Price of shares of CD Common
Stock will be determined prior to the Purchase Date,
Holders will bear the market risk with respect to the value
of the shares of CD Common Stock to be received from the
date such Market Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of
Purchase Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Purchase Notice has
been given may be converted if they are otherwise convertible only in
accordance with Article 10 hereof and paragraph 8 of the Securities
if the applicable Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying
Agent to collect payment;
(v) that the Purchase Price for any security as to which a
Purchase Notice has been given and not withdrawn will be paid
promptly following the later of the Purchase Date and the time of
surrender of such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise
rights under Section 3.8 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal pursuant
to the terms of Section 3.8(a)(1)(D) or Section 3.10);
(ix) that, unless the Company defaults in making payment on
Securities for which a Purchase Notice has been submitted, Original
Issue Discount on such Securities will cease to accrue on the
Purchase Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company
Notice in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Company Notice shall be
prepared by the Company.
(f) Covenants of the Company. All shares of CD Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable, and shall be free from preemptive rights and free of any
lien or adverse claim.
(g) Procedure upon Purchase. The Company shall deposit cash (in
respect of a cash purchases under Section 3.8 or for fractional interests,
as applicable) or shares of CD Common Stock, or a combination thereof, as
applicable, at the time and in the manner as provided in Section 3.11,
sufficient to pay the aggregate Purchase Price of all Securities to be
purchased pursuant to this Section 3.8. As soon as practicable after the
Purchase Date, the Company shall deliver to each Holder entitled to receive
shares of CD Common Stock through the Paying Agent, a certificate for the
number of full shares of CD Common Stock issuable in payment of the
Purchase Price and cash in lieu of any fractional interests. The person in
whose name the certificate for shares of CD Common Stock is registered
shall be treated as a holder of record of CD Common Stock on the Business
Day following the Purchase Date. Subject to Section 3.8(d), no payment or
adjustment will be made for dividends on the shares of CD Common Stock the
record date for which occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of purchased Security is paid in shares
of CD Common Stock, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on such issue of CD Common Stock. However, the
Holder shall pay any such tax which is due because the Holder requests the
CD Common Stock to be issued in a name other than the Holder's name. The
Paying Agent may refuse to deliver the certificates representing the shares
of CD Common Stock being issued in a name other than the Holder's name
until the Paying Agent receives a sum sufficient to pay any tax which will
be due because the shares of CD Common Stock are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
Section 3.9 Purchase of Securities at Option of the Holder upon
Change in Control. (a) If on or prior to February 13, 2004 there shall have
occurred a Change in Control, Securities shall be purchased by the Company,
at the option of the Holder thereof, at a purchase price specified in
paragraph 6 of the Securities (the "Change in Control Purchase Price"), as
of the date that is 35 Business Days after the occurrence of the Change in
Control (the "Change in Control Purchase Date"), subject to satisfaction by
or on behalf of the Holder of the requirements set forth in Section 3.9(c).
A "Change in Control" shall be deemed to have occurred at such
time as either of the following events shall occur:
(i) There shall be consummated any share exchange,
consolidation or merger of the Company pursuant to which the shares
of CD Common Stock would be converted into cash, securities or other
property, in each case other than a share exchange, consolidation or
merger of the Company in which the holders of the shares of CD Common
Stock immediately prior to the share exchange, consolidation or
merger have, directly or indirectly, at least a majority of the total
voting power in the aggregate of all classes of Capital Stock of the
continuing or surviving corporation immediately after the share
exchange, consolidation or merger; or
(ii) There is a report filed on Schedule 13D or TO (or any
successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any person (for the purposes of this Section 3.9
only, as the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) has become the beneficial owner (as the
term "beneficial owner" is defined under Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act) of 50% or more
of the voting power of the CD Common Stock then outstanding;
provided, however, that a person shall not be deemed beneficial owner
of, or to own beneficially, (A) any securities tendered pursuant to a
tender or exchange offer made by or on behalf of such person or any
of such person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange thereunder, or (B)
any securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy or
consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act, and (2) is not also then
reportable on Schedule 13D (or any successor schedule) under the
Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.9, a Change in
Control shall not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit
plan of the Company or any Subsidiary, or any person holding CD Common
Stock for or pursuant to the terms of any such employee benefit plan,
filing or becoming obligated to file a report under or in response to
Schedule 13D or Schedule TO (or any successor schedule, form or report)
under the Exchange Act disclosing beneficial ownership by it of shares of
CD Common Stock, whether in excess of 50% or otherwise.
"Associate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as
in effect on the date hereof.
(b) No later than 15 Business Days after the occurrence of a
Change in Control, the Company shall mail a written notice of the Change in
Control by first-class mail to the Trustee and to each Holder (and to
beneficial owners as required by applicable law). The notice shall include
a form of Change in Control Purchase Notice to be completed by the
Securityholder and shall state:
(1) briefly, the events causing a Change in Control and the
date of such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.9 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase
Notice has been given may be converted if they are
otherwise convertible pursuant to Article 10 hereof only if
the Change in Control Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent to
collect payment;
(9) that the Change in Control Purchase Price for any Security
as to which a Change in Control Purchase Notice has been
duly given and not withdrawn will be paid promptly
following the later of the Change in Control Purchase Date
and the time of surrender of such Security as described in
(8);
(10) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.9;
(11) briefly, the conversion rights, if any, of the Securities;
(12) the procedures for withdrawing a Change in Control
Purchase Notice;
(13) that, unless the Company defaults in making payment of
such Change in Control Purchase Price, Original Issue
Discount on Securities surrendered for purchase by the
Company will cease to accrue on and after the Change in
Control Purchase Date; and
(14) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section
3.9(a) upon delivery of a written notice of purchase (a "Change in Control
Purchase Notice") to the Paying Agent at any time prior to the close of
business on the third business day prior to the Change in Control Purchase
Date, stating:
(1) the certificate number of the Security which the Holder
will deliver to be purchased;
(2) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased,
which portion must be $1,000 or an integral multiple
thereof; and
(3) that such Security shall be purchased pursuant to the terms
and conditions specified in paragraph 6 of the Securities.
The delivery of such Security to the Paying Agent prior to, on
or after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to
the receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so
paid pursuant to this Section 3.9 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof set
forth in the related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.9, a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.9 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
the Change in Control Purchase Date and the time of delivery of the
Security to the Paying Agent in accordance with this Section 3.9.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by this Section 3.9(c) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to the close of
business on the Change in Control Purchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof.
Section 3.10 Effect of Purchase Notice or Change in Control
Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice or
Change in Control Purchase Notice specified in Section 3.8(a) or Section
3.9(c), as applicable, the Holder of the Security in respect of which such
Purchase Notice or Change in Control Purchase Notice, as the case may be,
was given shall (unless such Purchase Notice or Change in Control Purchase
Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Purchase Price or Change in
Control Purchase Price, as the case may be, with respect to such Security.
Such Purchase Price or Change in Control Purchase Price shall be paid to
such Holder, subject to receipts of funds and/or securities by the Paying
Agent, promptly following the later of (x) the Purchase Date or the Change
in Control Purchase Date, as the case may be, with respect to such Security
(provided the conditions in Section 3.8(a) or Section 3.9(c), as
applicable, have been satisfied) and (y) the time of delivery of such
Security to the Paying Agent by the Holder thereof in the manner required
by Section 3.8(a) or Section 3.9(c), as applicable. Securities in respect
of which a Purchase Notice or Change in Control Purchase Notice, as the
case may be, has been given by the Holder thereof may not be converted
pursuant to Article 10 hereof on or after the date of the delivery of such
Purchase Notice or Change in Control Purchase Notice, as the case may be,
unless such Purchase Notice or Change in Control Purchase Notice, as the
case may be, has first been validly withdrawn as specified in the following
two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the
case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice or Change in Control Purchase Notice, as the case may be, at any
time prior to the close of business on the Purchase Date or the Change in
Control Purchase Date, as the case may be, specifying:
(1) the certificate number, if any, of the Security in respect
of which such notice of withdrawal is being submitted,
(2) the Principal Amount at Maturity of the Security with
respect to which such notice of withdrawal is being
submitted, and
(3) the Principal Amount at Maturity, if any, of such Security
which remains subject to the original Purchase Notice or
Change in Control Purchase Notice, as the case may be, and
which has been or will be delivered for purchase by the
Company.
A written notice of withdrawal of a Purchase Notice may be in
the form set forth in the preceding paragraph or may be in the form of (i)
a conditional withdrawal contained in a Purchase Notice pursuant to the
terms of Section 3.8(a)(1)(D) or (ii) a conditional withdrawal containing
the information set forth in Section 3.8(a)(1)(D) and the preceding
paragraph and contained in a written notice of withdrawal delivered to the
Paying Agent as set forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to
Section 3.8 or 3.9 if there has occurred (prior to, on or after, as the
case may be, the giving, by the Holders of such Securities, of the required
Purchase Notice or Change in Control Purchase Notice, as the case may be)
and is continuing an Event of Default (other than a default in the payment
of the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Securities). The Paying Agent will promptly return
to the respective Holders thereof any Securities (x) with respect to which
a Purchase Notice or Change in Control Purchase Notice, as the case may be,
has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Purchase Price or Change in Control Purchase Price, as the
case may be, with respect to such Securities) in which case, upon such
return, the Purchase Notice or Change in Control Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 3.11 Deposit of Purchase Price or Change in Control
Purchase Price. Prior to 10:00 a.m. (local time in the City of New York) on
the Business Day following the Purchase Date or the Change in Control
Purchase Date, as the case may be, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.4) an amount of money (in
immediately available funds if deposited on such Business Day) or CD Common
Stock, if permitted hereunder, sufficient to pay the aggregate Purchase
Price or Change in Control Purchase Price, as the case may be, of all the
Securities or portions thereof which are to be purchased as of the Purchase
Date or Change in Control Purchase Date, as the case may be.
Section 3.12 Securities Purchased in Part. Any Certificated
Security which is to be purchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in
aggregate Principal Amount at Maturity equal to, and in exchange for, the
portion of the Principal Amount at Maturity of the Security so surrendered
which is not purchased.
Section 3.13 Covenant to Comply With Securities Laws Upon
Purchase of Securities. When complying with the provisions of Section 3.8
or 3.9 hereof (provided that such offer or purchase constitutes an "issuer
tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the
time of such offer or purchase), the Company shall (i) comply with Rule
13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related
Schedule TO (or any successor schedule, form or report) under the Exchange
Act, and (iii) otherwise comply with all Federal and state securities laws
so as to permit the rights and obligations under Sections 3.8 and 3.9 to be
exercised in the time and in the manner specified in Sections 3.8 and 3.9.
Section 3.14 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company any cash or shares of CD Common
Stock that remain unclaimed as provided in paragraph 12 of the Securities,
together with interest or dividends, if any, thereon (subject to the
provisions of Section 7.1(f)), held by them for the payment of the Purchase
Price or Change in Control Purchase Price, as the case may be; provided,
however, that to the extent that the aggregate amount of cash or shares of
CD Common Stock deposited by the Company pursuant to Section 3.11 exceeds
the aggregate Purchase Price or Change in Control Purchase Price, as the
case may be, of the Securities or portions thereof which the Company is
obligated to purchase as of the Purchase Date or Change in Control Purchase
Date, as the case may be, then, unless otherwise agreed in writing with the
Company, promptly after the Business Day following the Purchase Date or
Change in Control Purchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest or dividends,
if any, thereon (subject to the provisions of Section 7.1(f)).
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities. The Company shall promptly
make all payments in respect of the Securities on the dates and in the
manner provided in the Securities or pursuant to this Indenture. Any
amounts to be given to the Trustee or Paying Agent, shall be deposited with
the Trustee or Paying Agent by 10:00 a.m. New York City time by the
Company. Principal Amount at Maturity, Issue Price plus accrued Original
Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price and interest, if any, shall be considered paid on the
applicable date due if on such date (or, in the case of a Purchase Price or
Change in Control Purchase Price, on the Business Day following the
applicable Purchase Date or Change in Control Purchase Date, as the case
may be) the Trustee or the Paying Agent holds, in accordance with this
Indenture, money or securities, if permitted hereunder, sufficient to pay
all such amounts then due.
The Company shall, to the extent permitted by law, pay interest
on overdue amounts at the rate per annum set forth in paragraph 1 of the
Securities, compounded semiannually, which interest shall accrue from the
date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All
such interest shall be payable on demand. The accrual of such interest on
overdue amounts shall be in addition to the continued accrual of Original
Issue Discount.
Section 4.2 SEC and Other Reports. The Company shall file with
the Trustee, within 15 days after it files such annual and quarterly
reports, information, documents and other reports with the SEC, copies of
its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. In the event the
Company is at any time no longer subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, it shall continue to provide the
Trustee with reports containing substantially the same information as would
have been required to be filed with the SEC had the Company continued to
have been subject to such reporting requirements. In such event, such
reports shall be provided at the times the Company would have been required
to provide reports had it continued to have been subject to such reporting
requirements. The Company also shall comply with the other provisions of
TIA Section 314(a). Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officers' Certificates).
Section 4.3 Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on September 30, 2001) an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder)
and if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
Section 4.4 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
Section 4.5 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an office or
agency of the Trustee, Registrar, Paying Agent and Conversion Agent where
Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, exchange, purchase,
redemption or conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
office of The Bank of New York, 101 Barclay Street, Floor 21W, New York,
New York 10286 (Attention: Corporate Trust Trustee Administration), shall
initially be such office or agency for all of the aforesaid purposes. The
Company shall give prompt written notice to the Trustee of the location,
and of any change in the location, of any such office or agency (other than
a change in the location of the office of the Trustee). If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, the City of New
York, for such purposes.
Section 4.6 Delivery of Certain Information. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of CD Common Stock issued upon conversion
thereof, or in accordance with Section 3.8(c), the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below)
to such Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of CD Common Stock, or to a prospective
purchaser of any such security designated by any such holder, as the case
may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection with the
resale of any such security. "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act. Whether a person is a beneficial owner shall be determined
by the Company to the Company's reasonable satisfaction.
Section 4.7 Calculation of Original Issue Discount. The Company
and the Trustee on behalf of the Holders agree that (i) for United States
federal income tax purposes the Securities will be treated as indebtedness
subject to the Treasury regulations governing contingent payment debt
instruments and (ii) the Holders will report original issue discount and
interest on the Securities in accordance with the Company's determination
of the "comparable yield" and the "projected payment schedule" as
determined by the Company. For this purpose, the "comparable yield" for the
Securities is 9.47% compounded semiannually and the "projected payment
schedule" may be obtained by contacting the Company at the address set
forth in Section 11.2 of the Indenture. The Company shall file with the
Trustee no later than the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of
1986, as amended from time to time.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into any other person
or convey, transfer or lease its properties and assets substantially as an
entirety to any person, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the person (if other than the Company) formed by such consolidation
or into which the Company is merged or the person which acquires by
conveyance, transfer or lease the properties and assets of the Company
substantially as an entirety (i) shall be organized and validly existing
under the laws of the United States or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Securities and
this Indenture;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article 5 and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if
such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
The successor person formed by such consolidation or into which
the Company is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with
the same effect as if such successor had been named as the Company herein;
and thereafter, except in the case of a lease and obligations the Company
may have under a supplemental indenture pursuant to Section 10.14, the
Company shall be discharged from all obligations and covenants under this
Indenture and the Securities. Subject to Section 9.6, the Company, the
Trustee and the successor person shall enter into a supplemental indenture
to evidence the succession and substitution of such successor person and
such discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in the payment of the Issue Price plus
accrued Original Issue Discount, Redemption Price, Purchase Price or Change
in Control Purchase Price on any Security when the same becomes due and
payable at its Stated Maturity, upon redemption, upon declaration, when due
for purchase by the Company or otherwise;
(2) default in the payment of any contingent interest, liquidated
damages or, if the Securities have been converted to semiannual coupon
notes as provided in paragraph 1 of the Securities, accrued and unpaid
interest, in each case, when due and payable, and continuance of such
default for a period of 30 days;
(3) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1)
above) and such failure continues for 60 days after receipt by the Company
of a Notice of Default;
(4) an event of default, as defined in any indenture or instrument
evidencing or under which the Company on the date any determination shall
be made under this clause (4), shall have outstanding at least $50,000,000
aggregate principal amount of Indebtedness for borrowed money (other than
Non-Recourse Indebtedness), shall happen and be continuing and
(A) such event of default shall involve the failure to pay the
principal of or premium, if any, on such Indebtedness (or any part
thereof) on the final maturity date thereof after the expiration of
any applicable grace period with respect thereto and such defaulted
principal payment shall not have been made, waived or extended within
thirty (30) days after notice thereof shall have been given to the
Company by the Trustee (if such event be known to it) or to the
Company and the Trustee by the Holders of at least 25% in aggregate
Principal Amount at Maturity of all of the Securities at the time
outstanding, or
(B) such Indebtedness shall have been accelerated so that the same
shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within thirty (30)
days after notice thereof shall have been given to the Company by the
Trustee (if such event be known to it) or to the Company and the
Trustee by the Holders of at least 25% in aggregate Principal Amount
at Maturity of all of the Securities at the time outstanding;
provided that, if such event of default under such indenture or
instrument shall be remedied or cured by the Company or waived by the
requisite holders of such indebtedness, then the Event of Default by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or any of the Securityholders, and
provided further, however, that subject to the provisions of Section 7.1
and 7.2, the Trustee shall not be charged with knowledge of any such event
of default unless written notice thereof shall have been given to the
Trustee by the Company, by the holder or an agent of the holder of any such
Indebtedness, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the Holders
of not less than 25% in the aggregate principal amount of the Securities at
the time outstanding;
(5) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(6) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or for any substantial part of its
property or make any general assignment for the benefit of creditors.
A Default under clause (3) or (4) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least
25% in aggregate Principal Amount at Maturity of the Securities at the time
outstanding notify the Company and the Trustee, of the Default and the
Company does not cure such Default (and such Default is not waived) within
the time specified in clause (3) or (4) above after actual receipt of such
notice. Any such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
it becomes aware of the occurrence thereof, written notice of any event
which with the giving of notice or the lapse of time, or both, would become
an Event of Default under clauses (3) or (4) above, its status and what
action the Company is taking or proposes to take with respect thereto.
Section 6.2 Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.1(4) or (5) occurs and is
continuing, the Trustee by Notice to the Company, or the Holders of at
least 25% in aggregate Principal Amount at Maturity of the Securities at
the time outstanding by notice to the Company and the Trustee, may declare
the Issue Price plus accrued Original Issue Discount through the date of
declaration plus accrued any unpaid interest, if any (including contingent
interest) on all the Securities to be immediately due and payable. Upon
such a declaration, such Issue Price plus accrued Original Issue Discount
and accrued and unpaid interest, if any, (including contingent interest)
shall be due and payable immediately. If an Event of Default specified in
Section 6.1(4) or (5) occurs and is continuing, the Issue Price plus
accrued Original Issue Discount and accrued and unpaid interest, if any,
(including contingent interest) on all the Securities shall become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
the Issue Price plus accrued Original Issue Discount that have become due
solely as a result of acceleration and if all amounts due to the Trustee
under Section 7.7 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
If the Securities have, at the Company's option, been converted
to semiannual coupon Securities as provided in paragraph 1 of the
Securities, the amount due upon any acceleration will be the restated
principal amount thereof together with accrued and unpaid interest thereon.
Section 6.3 Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the Issue Price plus accrued Original Issue Discount 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 the Trustee does
not possess any of the Securities or does not produce any of the Securities
in the proceeding. A delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of, or acquiescence
in, the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
Section 6.4 Waiver of Past Defaults. The Holders of a majority
in aggregate Principal Amount at Maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except
(1) an Event of Default described in Section 6.1(1), (2) a Default in
respect of a provision that under Section 9.2 cannot be amended without the
consent of each Securityholder affected or (3) a Default which constitutes
a failure to convert any Security in accordance with the terms of Article
10. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
This Section 6.4 shall be in lieu of Section 316(a)1(B) of the TIA and such
Section 316(a)1(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section 6.5 Control by Majority. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time
outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability
unless the Trustee is offered indemnity satisfactory to it. This Section
6.5 shall be in lieu of Section 316(a)1(A) of the TIA and such Section
316(a)1(A) is hereby expressly excluded from this Indenture, as permitted
by the TIA.
Section 6.6 Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity; and
(5) the Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding do not give the Trustee
a direction inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority
over any other Securityholder.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the Principal Amount at Maturity, Issue Price
plus accrued Original Issue Discount, Redemption Price, Purchase Price,
Change in Control Purchase Price or interest, if any, in respect of the
Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 10, or to bring suit for the
enforcement of any such payment on or after such respective dates or the
right to convert, shall not be impaired or affected adversely without the
consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default
described in Section 6.1(1) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount owing with respect to the Securities and
the amounts provided for in Section 7.7.
Section 6.9 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the Principal Amount at Maturity,
Issue Price plus accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, in
respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any
such amount) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
Principal Amount at Maturity, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase
Price, or interest, if any, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or any
other amounts due the Trustee under Section 7.7) and of the Holders allowed
in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding 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 the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.7.
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 thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10 Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following
order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount at Maturity, Issue Price plus accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in
Control Purchase Price or interest, if any, as the case may be, ratably,
without preference or priority of any kind, according to such amounts due
and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each Securityholder and
the Company a notice that states the record date, the payment date and the
amount to be paid.
Section 6.11 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 (other
than the Trustee) 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 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7
or a suit by Holders of more than 10% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding. This Section 6.11 shall
be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
Section 6.12 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of the
Principal Amount at Maturity, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price or Change in Control Purchase
Price in respect of Securities, or any interest on such amounts, as
contemplated herein, or which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to
the requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or
other facts stated therein. This Section 7.1(b) shall be in
lieu of Section 3.15(a) of the TIA and such Section 315(a)
is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.5.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2)
and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this
Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or extend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee (acting in any capacity hereunder) shall be under no liability for
interest on any money received by it hereunder unless otherwise agreed in
writing with the Company.
Section 7.2 Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers'
Certificate;
(c) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(d) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to
be authorized or within its rights or powers conferred under this
Indenture;
(e) The Trustee may consult with counsel selected by it and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel.
(f) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby.
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(h) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this
Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
Section 7.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or
application of the proceeds from the Securities, it shall not be
responsible for any statement in the registration statement for the
Securities under the Securities Act or in any offering document for the
Securities, the Indenture or the Securities (other than its certificate of
authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
Section 7.5 Notice of Defaults. If a Default occurs and if it
is known to the Trustee, the Trustee shall give to each Securityholder
notice of the Default within 90 days after it occurs or, if later, within
15 days after it is known to the Trustee, unless such Default shall have
been cured or waived before the giving of such notice. Notwithstanding the
preceding sentence, except in the case of a Default described in Section
6.1(1), the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the
notice is in the interests of Securityholders. The second sentence of this
Section 7.5 shall be in lieu of the proviso to Section 315(b) of the TIA
and such proviso is hereby expressly excluded from this Indenture, as
permitted by the TIA. The Trustee shall not be deemed to have knowledge of
a Default unless a Responsible Officer of the Trustee has received written
notice of such Default.
Section 7.6 Reports by Trustee to Holders. Within 60 days after
each May 15 beginning with the May 15 following the date of this Indenture,
the Trustee shall mail to each Securityholder a brief report dated as of
such May 15 that complies with TIA Section 313(a), if required by such
Section 313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each securities exchange,
if any, on which the Securities are listed. The Company agrees to notify
the Trustee promptly whenever the Securities become listed on any
securities exchange and of any delisting thereof.
Section 7.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited (to the extent permitted by law) by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances and disbursements of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor, Trustee and
their agents for, and to hold them harmless against, any loss, damage,
claim, liability, cost or expense (including attorney's fees and expenses,
and taxes (other than taxes based upon, measured by or determined by the
income of the Trustee)) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
the Principal Amount at Maturity, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase
Price or interest, if any, as the case may be, on particular Securities.
The Company's payment obligations pursuant to this Section 7.7
shall survive the discharge of this Indenture and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(4), the expenses including
the reasonable charges and expenses of its counsel, are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may resign by
so notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant
to this Section 7.8. The Holders of a majority in aggregate Principal
Amount at Maturity of the Securities at the time outstanding may remove the
Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint,
by resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form
and substance to the retiring Trustee and the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding may petition any court
of competent jurisdiction at the expense of the Company for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Section 7.9 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b).
The Trustee (or its parent holding company) shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall
prevent the Trustee from filing with the Commission the application
referred to in the penultimate paragraph of TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.7) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits
with the Trustee cash sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.7), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section
7.7, cease to be of further effect. The Trustee shall join in the execution
of a document prepared by the Company acknowledging satisfaction and
discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and Opinion of Counsel and at the cost and expense of
the Company.
Section 8.2 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to
the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person and the Trustee and the Paying Agent shall have no further liability
to the Securityholders with respect to such money or securities for that
period commencing after the return thereof.
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without the consent of
any Securityholder, so long as such changes, other than those in clause
(2), do not materially and adversely affect the interests of the
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency provided
that such modification or amendment does not, in the good faith opinion of
the Company's Board of Directors and the Trustee, adversely affect the
interests of the holders of the Securities in any material respect;
(2) to comply with Article 5 or Section 10.14;
(3) to secure the Company's obligations under the Securities and this
Indenture;
(4) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the
Company; or
(5) to make any change necessary for the registration of the
Securities under the Securities Act or to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA provided
that such modification or amendment does not, in the good faith opinion of
the Company's Board of Directors and the Trustee, adversely affect the
interests of the holders of the Securities in any material respect.
Section 9.2 With Consent of Holders. With the written consent
of the Holders of at least a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding, the Company and the
Trustee may amend this Indenture or the Securities. However, without the
consent of each Securityholder affected, an amendment to this Indenture or
the Securities may not:
(1) make any change in the manner or rate of accrual in connection
with Original Issue Discount, reduce the rate of interest (including
contingent interest) referred to in paragraph 1 of the Securities, or
extend the time for payment of Original Issue Discount on any Security;
(2) reduce the Principal Amount at Maturity or the Issue Price of or
extend the Stated Maturity of any Security;
(3) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price of any Security;
(4) make any Security or interest thereon payable in money or
securities other than that stated in the Security;
(5) make any change in Section 6.4, Section 6.7 or this Section 9.2,
except to increase any percentage set forth therein;
(6) make any change that adversely affects the right to convert any
Security; or
(7) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and
this Indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective,
the Company shall mail to each Holder a notice briefly describing the
amendment.
Section 9.3 Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with
the TIA.
Section 9.4 Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a
continuing consent by the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver
or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such
Holder's Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, waiver or action
becomes effective. After an amendment, waiver or action becomes effective,
it shall bind every Securityholder.
Section 9.5 Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for outstanding Securities.
Section 9.6 Trustee to Sign Supplemental Indentures. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing
such supplemental indenture the Trustee shall receive, and (subject to the
provisions of Section 7.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture.
Section 9.7 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
ARTICLE X
CONVERSIONS
Section 10.1 Conversion Privilege. A Holder of a Security may
convert such Security into shares of CD Common Stock at any time during the
period stated in paragraph 8 of the Securities. The number of shares of CD
Common Stock issuable upon conversion of a Security per $1,000 of Principal
Amount at Maturity thereof (the "Conversion Rate") shall be that set forth
in paragraph 8 in the Securities, subject to adjustment as herein set
forth.
A Holder may convert a portion of the Principal Amount at
Maturity of a Security if the portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 10.6(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Sale Price" pursuant
to the definition in the preceding sentence, "Average Sale Price" shall be
calculated for such period in a manner determined by the Board of Directors
to reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the shares of CD Common Stock during
such period.
"Time of Determination" means the time and date of the earlier
of (i) the determination of stockholders entitled to receive rights,
warrants or options or a distribution, in each case, to which Section 10.7
or 10.8 applies and (ii) the time ("Ex-Dividend Time") immediately prior to
the commencement of "ex-dividend" trading for such rights, warrants or
options or distribution on the New York Stock Exchange or such other
national or regional exchange or market on which the shares of CD Common
Stock are then listed or quoted.
Section 10.2 Conversion Procedure. To convert a Security a
Holder must satisfy the requirements in paragraph 8 of the Securities. The
first Business Day on which the Holder satisfies all those requirements is
the conversion date (the "Conversion Date").
As soon as practicable after the Conversion Date, the Company
shall deliver to the Holder, through the Conversion Agent, a certificate
for the number of full shares of CD Common Stock issuable upon the
conversion or exchange and cash in lieu of any fractional share determined
pursuant to Section 10.3. The person in whose name the certificate is
registered shall be treated as a shareholder of record as of the close of
business on the Conversion Date. Upon conversion of a Security, such person
shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on, or
other distributions with respect to, any CD Common Stock except as provided
in this Article 10. On conversion of a Security, that portion of accrued
Original Issue Discount attributable to the period from the Issue Date of
the Security through the Conversion Date with respect to the converted
Security shall not be cancelled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through delivery
of the shares of CD Common Stock (together with the cash payment, if any,
in lieu of fractional shares) for the Security being converted pursuant to
the provisions hereof; and the fair market value of such shares of CD
Common Stock (together with any such cash payment in lieu of fractional
shares) shall be treated as issued, to the extent thereof, first in
exchange for Original Issue Discount accrued through the Conversion Date,
and the balance, if any, of such fair market value of such shares of CD
Common Stock (and any such cash payment) shall be treated as issued for the
Issue Price of the Security being converted pursuant to the provisions
hereof. If the Holder converts more than one Security at the same time, the
number of shares of CD Common Stock issuable upon the conversion shall be
based on the total Principal Amount at Maturity of the Securities
converted.
If the last day on which a Security may be converted is a Legal
Holiday, the Security may be surrendered on the next succeeding day that is
not a Legal Holiday.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder, a new Security in an authorized denomination equal in Principal
Amount at Maturity to the unconverted portion of the Security surrendered.
Section 10.3 Fractional Shares. Securityholders will not
receive a fractional share upon conversion of a Security. Instead, the
Holder will receive cash for the current market value of the fractional
share. The current market value of a fractional share shall be determined,
to the nearest 1/1,000th of a share, by multiplying the Sale Price, on the
last trading day prior to the Conversion Date, of a full share by the
fractional amount and rounding the product to the nearest whole cent.
Section 10.4 Taxes on Conversion. If a Holder submits a
Security for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of shares of CD Common Stock
upon the conversion. However, the Holder shall pay any such tax which is
due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificates representing the shares of CD Common Stock being issued in a
name other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be
issued in a name other than the Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulations.
Section 10.5 Company to Provide Stock. The Company shall, prior
to issuance of any Securities under this Article 10, and from time to time
as may be necessary, reserve out of its authorized but unissued shares of
CD Common Stock a sufficient number of shares of CD Common Stock to permit
the conversion of the Securities.
All shares of CD Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly
and validly issued and fully paid and nonassessable, and shall be free from
preemptive rights and free of any lien or adverse claim. The Company will
endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of CD Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted
such shares of CD Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the shares of CD
Common Stock are then listed or quoted.
Section 10.6 Adjustment for Change In Capital Stock. If, after
the Issue Date of the Securities, the Company:
(1) pays a dividend or makes a distribution on the CD Common Stock
payable in shares of CD Common Stock;
(2) subdivides the outstanding shares of CD Common Stock into a
greater number of shares;
(3) combines the outstanding shares of CD Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on the CD Common Stock in
shares of its Capital Stock (other than CD Common Stock or rights, warrants
or options for its Capital Stock); or
(5) issues by reclassification of the CD Common Stock any shares of
its Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of
the Company which such Holder would have owned immediately following such
action if such Holder had converted the Security immediately prior to such
action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after
the effective date in the case of a subdivision, combination or
reclassification.
If after an adjustment a Holder of a Security upon conversion
of such Security may receive shares of two or more classes of Capital Stock
of the Company, the Conversion Rate shall thereafter be subject to
adjustment upon the occurrence of an action taken with respect to any such
class of Capital Stock as is contemplated by this Article 10 with respect
to the shares of CD Common Stock, on terms comparable to those applicable
to shares of CD Common Stock in this Article 10.
Section 10.7 Adjustment for Rights Issue. If after the Issue
Date of the Securities, the Company distributes any rights, warrants or
options to all holders of its shares of CD Common Stock entitling them, for
a period expiring within 60 days after the record date for such
distribution, to purchase shares of CD Common Stock at a price per share
less than the Average Sale Price as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
R' = R x (O + N)
---------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of CD Common Stock outstanding on the record
date for the distribution to which this Section 10.7 is being applied.
N = the number of additional shares of CD Common Stock offered
pursuant to the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a distribution
to which Section 10.6(4) applies or (ii) a distribution to which Section
10.8 applies, for which, in each case, (x) the record date shall occur on
or before the record date for the distribution to which this Section 10.7
applies and (y) the Ex-Dividend Time shall occur on or after the date of
the Time of Determination for the distribution to which this Section 10.7
applies, the fair market value (on the record date for the distribution to
which this Section 10.7 applies) of the
(1) Capital Stock of the Company distributed in respect of each
shares of CD Common Stock in such Section 10.6(4) distribution and
(2) assets of the Company or debt securities or any rights, warrants
or options to purchase securities of the Company distributed in respect of
each shares of CD Common Stock in such Section 10.8 distribution.
The Board of Directors shall determine fair market values for
the purposes of this Section 10.7, except as Section 10.8 otherwise
provides in the case of a spin-off.
"Average Sale Price" means the average of the Sale Prices of
the shares of CD Common Stock for the shorter of
(i) 30 consecutive trading days ending on the last full
trading day prior to the Time of Determination with respect to the
rights, warrants or options or distribution in respect of which the
Average Sale Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding
the first public announcement of (a) the issuance of rights, warrants
or options or (b) the distribution, in each case, in respect of which
the Average Sale Price is being calculated and (y) proceeding through
the last full trading day prior to the Time of Determination with
respect to the rights, warrants or options or distribution in respect
of which the Average Sale Price is being calculated (excluding days
within such period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding
(a) issuance of rights, warrants or options or (b) distribution, in
each case, for which an adjustment is required by the provisions of
Section 10.6(4), 10.7 or 10.8 and (y) proceeding through the last
full trading day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of which
the Average Sale Price is being calculated (excluding days within
such period, if any, which are not trading days).
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
rights, warrants or options to which this Section 10.7 applies. If all of
the shares of CD Common Stock subject to such rights, warrants or options
have not been issued when such rights, warrants or options expire, then the
Conversion Rate shall promptly be readjusted to the Conversion Rate which
would then be in effect had the adjustment upon the issuance of such
rights, warrants or options been made on the basis of the actual number of
shares of CD Common Stock issued upon the exercise of such rights, warrants
or options.
No adjustment shall be made under this Section 10.7 if the
application of the formula stated above in this Section 10.7 would result
in a value of R' that is equal to or less than the value of R.
Section 10.8 Adjustment for Other Distributions. If, after the
Issue Date of the Securities, the Company distributes to all holders of its
shares of CD Common Stock any of its assets, or debt securities or any
rights, warrants or options to purchase securities of the Company
(including securities or cash, but excluding (x) distributions of Capital
Stock referred to in Section 10.6 and distributions of rights, warrants or
options referred to in Section 10.7, (y) distributions of assets, debt
securities or rights to purchase securities of Cendant Membership Services,
Inc. or successor to Cendant Membership Services, Inc.'s business, and (z)
cash dividends or other cash distributions that are paid out of
consolidated current net earnings or earnings retained in the business as
shown on the books of the Company unless such cash dividends or other cash
distributions are Extraordinary Cash Dividends) the Conversion Rate shall
be adjusted, subject to the provisions of the last paragraph of this
Section 10.8, in accordance with the formula:
R' = R x M
-----
(M-F)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution to
which Section 10.6(4) applies, for which (i) the record date shall occur on
or before the record date for the distribution to which this Section 10.8
applies and (ii) the Ex-Dividend Time shall occur on or after the date of
the Time of Determination for the distribution to which this Section 10.8
applies, the fair market value (on the record date for the distribution to
which this Section 10.8 applies) of any Capital Stock of the Company
distributed in respect of each share of CD Common Stock in such Section
10.6(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 10.8 applies) of the assets, securities, rights,
warrants or options to be distributed in respect of each share of CD Common
Stock in the distribution to which this Section 10.8 is being applied
(including, in the case of cash dividends or other cash distributions
giving rise to an adjustment, all such cash distributed concurrently).
The Board of Directors shall determine fair market values for
the purposes of this Section 10.8, except that in respect of a dividend or
other distribution of shares of Capital Stock of any class or series, or
similar equity interests, of or relating to a Subsidiary or other business
unit of the Company (a "Spin-off"), the fair market value of the securities
to be distributed shall equal the average of the daily Sale Prices of those
securities for the five consecutive trading days commencing on and
including the sixth day of trading of those securities after the
effectiveness of the Spin-off and the Average of the Sale Prices shall mean
the average Sale Prices for the CD Common Stock for the same five trading
days. In the event, however, that an underwritten initial public offering
of the securities in the Spin-off occurs simultaneously with the Spin-off,
fair market value of the securities distributed in the Spin-off shall mean
the initial public offering price of such securities and the Average Sale
Price shall mean the Sale Price for the CD Common Stock on the same trading
day.
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
distribution to which this Section 10.8 applies, except that an adjustment
related to a Spin-off shall become effective at the earlier to occur of (i)
10 trading days after the effective date of the Spin-off and (ii) the
initial public offering of the securities distributed in the Spin-off.
For purposes of this Section 10.8, the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the shares of CD
Common Stock the amount of which, together with the aggregate amount of
cash dividends on the shares of CD Common Stock to be aggregated with such
cash dividend in accordance with the provisions of this paragraph, equals
or exceeds the threshold percentage set forth in the following paragraph.
For purposes of the following paragraph, the "Measurement Period" with
respect to a cash dividend on the shares of CD Common Stock shall mean the
365 consecutive day period ending on the date prior to the Ex-Dividend Time
with respect to such cash dividend, and the "Relevant Cash Dividends" with
respect to a cash dividend on the shares of CD Common Stock shall mean the
cash dividends on the shares of CD Common Stock with Ex-Dividend Times
occurring in the Measurement Period.
If, upon the date prior to the Ex-Dividend Time with respect a
cash dividend on the shares of CD Common Stock, the aggregate amount of
such cash dividend together with the amounts of all Relevant Cash Dividends
equals or exceeds on a per share basis 10% of the Sale Price of the shares
of CD Common Stock on the last trading day preceding the date of
declaration by the Board of Directors of the cash dividend with respect to
which this provision is being applied, then such cash dividend together
with all Relevant Cash Dividends, shall be deemed to be an Extraordinary
Cash Dividend and for purposes of applying the formula set forth above in
this Section 10.8, the value of "F" shall be equal to (y) the aggregate
amount of such cash dividend together with the amount of all Relevant Cash
Dividends, minus (z) the aggregate amount of all Relevant Cash Dividends
for which a prior adjustment in the Conversion Rate was previously made
under this Section 10.8.
In making the determinations required by the preceding
paragraph, the amount of cash dividends paid on a per share basis and the
amount of any Relevant Cash Dividends specified in the preceding paragraph,
shall be appropriately adjusted to reflect the occurrence during such
period of any event described in Section 10.6.
In the event that, with respect to any distribution to which
this Section 10.8 would otherwise apply, the difference "M-F" as defined in
the above formula is less than $1.00 or "F" is equal to or greater than
"M", then the adjustment provided by this Section 10.8 shall not be made
and in lieu thereof the provisions of Section 10.14 shall apply to such
distribution.
Section 10.9 When Adjustment May Be Deferred. No adjustment in
the Conversion Rate need be made unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Rate. Any adjustments
that are not made shall be carried forward and taken into account in any
subsequent adjustment.
All calculations under this Article 10 shall be made to the
nearest cent or to the nearest 1/1,000th of a share, as the case may be.
Section 10.10 When No Adjustment Required. No adjustment need
be made for a transaction referred to in Section 10.6, 10.7, 10.8 or 10.14
if Securityholders are to participate in the transaction without conversion
on a basis and with notice that the Board of Directors determines to be
fair and appropriate in light of the basis and notice on which holders of
shares of CD Common Stock participate in the transaction. No adjustment
need be made for rights to purchase shares of CD Common Stock pursuant to a
Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no
par value of the shares of CD Common Stock.
To the extent the Securities become convertible pursuant to
this Article 10 in whole or in part into cash, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash.
Section 10.11 Notice of Adjustment. Whenever the Conversion
Rate is adjusted, the Company shall promptly mail to Securityholders a
notice of the adjustment. The Company shall file with the Trustee and the
Conversion Agent such notice and a certificate from the Company's
independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be
conclusive evidence that the adjustment is correct. Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect
to any such certificate except to exhibit the same to any Holder desiring
inspection thereof.
Section 10.12 Voluntary Increase. The Company from time to
time may increase the Conversion Rate by any amount for any period of time.
Whenever the Conversion Rate is increased, the Company shall mail to
Securityholders and file with the Trustee and the Conversion Agent a notice
of the increase. The Company shall mail the notice at least 15 days before
the date the increased Conversion Rate takes effect. The notice shall state
the increased Conversion Rate and the period it will be in effect. A
voluntary increase of the Conversion Rate does not change or adjust the
Conversion Rate otherwise in effect for purposes of Section 10.6, 10.7 or
10.8.
Section 10.13 Notice of Certain Transactions. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 10.6, 10.7 or 10.8 (unless no
adjustment is to occur pursuant to Section 10.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee
and the Conversion Agent a notice stating the proposed record date for a
dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, binding share
exchange, transfer, liquidation or dissolution. The Company shall file and
mail the notice at least 15 days before such date. Failure to file or mail
the notice or any defect in it shall not affect the validity of the
transaction.
Section 10.14 Reorganization of Company; Special Distributions.
If the Company is a party to a transaction subject to Section 5.1 (other
than a sale of all or substantially all of the assets of the Company in a
transaction in which the holders of shares of CD Common Stock immediately
prior to such transaction do not receive securities, cash or other assets
of the Company or any other person) or a merger or binding share exchange
which reclassifies or changes its outstanding shares of CD Common Stock,
the person obligated to deliver securities, cash or other assets upon
conversion of Securities shall enter into a supplemental indenture. If the
issuer of securities deliverable upon conversion of Securities is an
Affiliate of the successor Company, that issuer shall join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a
Security may convert it into the kind and amount of securities, cash or
other assets which such Holder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such Holder
had converted the Security immediately before the effective date of the
transaction, assuming (to the extent applicable) that such Holder (i) was
not a constituent person or an Affiliate of a constituent person to such
transaction; (ii) made no election with respect thereto; and (iii) was
treated alike with the plurality of non-electing Holders. The supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practical to the adjustments provided for in this Article 10. The
successor Company shall mail to Securityholders a notice briefly describing
the supplemental indenture.
If this Section applies, neither Section 10.6 nor 10.7
applies.
If the Company makes a distribution to all holders of its
shares of CD Common Stock of any of its assets, or debt securities or any
rights, warrants or options to purchase securities of the Company that, but
for the provisions of the last paragraph of Section 10.8, would otherwise
result in an adjustment in the Conversion Rate pursuant to the provisions
of Section 10.8, then, from and after the record date for determining the
holders of shares of CD Common Stock entitled to receive the distribution,
a Holder of a Security that converts such Security in accordance with the
provisions of this Indenture shall upon such conversion be entitled to
receive, in addition to the shares of shares of CD Common Stock into which
the Security is convertible, the kind and amount of securities, cash or
other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of shares of CD Common Stock
entitled to receive the distribution.
Section 10.15 Company Determination Final. Any determination
that the Company or the Board of Directors must make pursuant to Section
10.3, 10.6, 10.7, 10.8, 10.9, 10.10, 10.14 or 10.17 is conclusive, absent
manifest error.
Section 10.16 Trustee's Adjustment Disclaimer. The Trustee has
no duty to determine when an adjustment under this Article 10 should be
made, how it should be made or what it should be. The Trustee has no duty
to determine whether a supplemental indenture under Section 10.14 need be
entered into or whether any provisions of any supplemental indenture are
correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets
issued upon conversion of Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article 10. Each Conversion
Agent shall have the same protection under this Section 10.16 as the
Trustee.
Section 10.17 Simultaneous Adjustments. In the event that this
Article 10 requires adjustments to the Conversion Rate under more than one
of Sections 10.6(4), 10.7 or 10.8, and the record dates for the
distributions giving rise to such adjustments shall occur on the same date,
then such adjustments shall be made by applying, first, the provisions of
Section 10.6, second, the provisions of Section 10.8 and, third, the
provisions of Section 10.7.
Section 10.18 Successive Adjustments. After an adjustment to
the Conversion Rate under this Article 10, any subsequent event requiring
an adjustment under this Article 10 shall cause an adjustment to the
Conversion Rate as so adjusted.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required
provision shall control.
Section 11.2 Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered
in person or mailed by first-class mail, postage prepaid, addressed as
follows or transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile numbers:
if to the Company:
Cendant Corporation.
9 West 57th Street, 43rd Floor
New York, New York 10019
Attn: Secretary
Facsimile No. (212) 413-1922
if to the Trustee:
The Bank of New York
101 Barclay Street
Floor 21W
New York, New York 10286
Telephone No. 212-815-5359
Facsimile No. 212-815-5915
Attention: Corporate Trust Administration
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Securityholder shall be
mailed to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each Registrar,
Paying Agent, Conversion Agent or co-registrar.
Section 11.3 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.4 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.5 Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
Section 11.6 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar. The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar, the Conversion Agent and the
Paying Agent may make reasonable rules for their functions.
Section 11.8 Legal Holidays. A "Legal Holiday" is any day other
than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the action to be taken
on such date is a payment in respect of the Securities, no Original Issue
Discount or interest, if any, shall accrue for the intervening period.
Section 11.9 GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS INDENTURE AND THE SECURITIES.
Section 11.10 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be
part of the consideration for the issue of the Securities.
Section 11.11 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successor. All agreements
of the Trustee in this Indenture shall bind its successor.
Section 11.12 Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date
first above written.
CENDANT CORPORATION
By: /s/ James E. Buckman
_______________________________
Name: James E. Buckman
Title: Vice Chairman and General
Counsel
THE BANK OF NEW YORK
By: /s/ Julie Salovitch-Miller
_______________________________
Name: Julie Salovitch-Miller
Title: Vice President
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND WILL BE SUBJECT TO
THE REGULATIONS GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES. AS REQUIRED UNDER APPLICABLE TREASURY
REGULATIONS, THE COMPANY HAS SET FORTH THE "COMPARABLE YIELD" IN SECTION
4.7 OF THE INDENTURE PURSUANT TO WHICH THIS SECURITY IS BEING ISSUED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF CD COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR THE SHARES OF CD COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES
TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON
SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
CENDANT CORPORATION
Zero Coupon Senior Convertible Contingent Debt Securities due 2021
No. CUSIP:
Issue Date: February 13, 2001 Original Issue Discount: $391.59 (for
each $1,000 Principal Amount at Maturity)
Issue Price: $608.41
(for each $1,000 Principal Amount
at Maturity)
CENDANT CORPORATION, a Delaware corporation, promises to pay to
Cede & Co. or registered assigns, the Principal Amount at Maturity of
[ ($ )] on February 13, 2021.
This Security shall not bear interest except as specified on
the other side of this Security. Original Issue Discount will accrue as
specified on the other side of this Security. This Security is convertible
as specified on the other side of this Security.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: CENDANT CORPORATION
By: _______________________________
Title: ____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.
By _____________________________
Authorized Signatory
Dated:
[FORM OF REVERSE SIDE OF CODES]
Zero Coupon Senior Convertible
Contingent Debt Securities due 2021
1. Interest.
Except as provide below, this Security shall not bear interest.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security remains outstanding, shall accrue at 2.50 % per annum, on a
semiannual bond equivalent basis using a 360-day year comprised of twelve
30-day months, from the Issue Date of this Security.
Contingent Interest. Interest will accrue on this Security
during any six-month period from February 13 to August 12 and from August
13 to February 12, commencing February 13, 2004, if the average Market
Price of the Security for the five trading day period ending on (if the
second Business Day is not a trading day, then on the last trading day
prior to) the second Business Day prior to the first day of the applicable
six-month period equals 120% or more of the sum of the Issue Price and
accrued Original Issue Discount for such Security to the day immediately
preceding the relevant six-month period.
The "Market Price" of the Securities on any date means the
average of the secondary market bid quotations per Security obtained by the
bid solicitation agent for $10 million Principal Amount at Maturity of
Securities at approximately 4:00 p.m., New York City time, on such
determination date from two unaffiliated securities dealers selected by the
Company, provided that if (i) at least two such bids are not obtained by
the bid solicitation agent, or (ii) in the Company's reasonable judgment,
the bid quotations are not indicative of the secondary market value of the
Securities, then the Market Price of the Securities will equal (x) the then
applicable conversion rate of the Securities multiplied by (b) the average
closing per share sale price for the CD Common Stock (or, if no closing
sale price is reported, the average of the bid and ask prices or, if more
than one in either case, the average of the average bid and average ask
prices) on the five trading days ending on such determination date as
reported in the composite transactions for the principal United States
securities exchange on which the CD Common Stock are traded or, if the CD
Common Stock is not listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers Automated Quotation System. In the absence of such quotations, the
Company shall be entitled to determine the sales price on the basis of such
quotations as it, in good faith, considers appropriate.
The bid solicitation agent will initially be The Bank of New
York. The Company may change the bid solicitation agent, but the bid
solicitation agent will not be an Affiliate. The bid solicitation agent
will solicit bids from securities dealers that are believed by the Company
to be willing to bid for the Securities
The amount of contingent interest payable on this Security in
respect of any six-month period, if any, will equal the lesser of (i) 0.25%
and (ii) 2% of the Company's borrowing rate for senior non-convertible,
fixed-rate Indebtedness with a maturity comparable to this Security
multiplied by the sum of the Issue Price and the accrued Original Issue
Discount as of the Business Day immediately preceding the applicable
six-month period. The Company will determine its borrowing rate for senior
non-convertible, fixed-rate Indebtedness with a maturity comparable to this
Security, on such basis as it, in good faith, considers appropriate.
Contingent interest, if any, will be payable to the Holders of
this Security as of the fifteenth day preceding the last day of the
relevant six-month period. Such payments will be paid on the last day of
the relevant six-month period.
Original Issue Discount will continue to accrue at the yield to
maturity whether or not contingent interest is paid.
Upon determination that the Holder of this Security is entitled
to receive contingent interest which may become payable during a relevant
six-month period, on or prior to the start of such six-month period, the
Company will publicly announce such determination and publish it on the
Company's Web site on the World Wide
The Company will not pay contingent interest accrued and unpaid
on this Security upon conversion into CD Common Stock, except under certain
limited circumstances. described below.
Semiannual Interest Payments at the Company's Option. From and after
the date of the occurrence of a Tax Event, the Company will have the option
to elect to have interest in lieu of future Original Issue Discount accrue
at 2.50% per year on a restated principal amount per Security and to pay
such interest in cash. The "restated principal amount" of a Security will
be equal to the Issue Price plus Original Issue Discount accrued to the
date of the Tax Event or the date on which the Company exercises the option
described herein, whichever is later (the "Option Exercise Date").
Such interest shall accrue from the Option Exercise Date and will be
payable semiannually on interest payment dates of February 13 and August 13
of each year to Holders of record at the close of business on February 1 or
August 1 immediately preceding the interest payment date. Interest will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the Option Exercise Date. In the event that
the Company exercises its option to pay interest, the Redemption Price,
Purchase Price and Change in Control Purchase Price will be adjusted to
reflect the restated principal amount.
A "Tax Event" means that Cendant shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on
or after February 8, 2001, as a result of:
(i) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority
thereof or therein, or
(ii) any amendment to, or change in, an interpretation or
application of such laws or regulations by any legislative body,
court, governmental agency or regulatory authority
in each case which amendment or change is enacted, promulgated, issued or
announced or which interpretation is issued or announced or which action is
taken, on or after February 8, 2001 offering memorandum there is more than
an insubstantial risk that interest (including original issue discount and
contingent interest, if any) payable on this Security either:
(i) would not be deductible on a current accrual basis, or
(ii) would not be deductible under any other method, in either
case in whole or in part, by the Company (by reason of deferral,
disallowance, or otherwise) for United States federal income tax
purposes.
General. If this Security is redeemed on a date that is after
the record date and prior to the corresponding interest payment date,
interest, if any, accrued and unpaid hereon to but not including the
applicable Redemption Date will be paid to the same Holder to whom the
Company pays the principal of this Security.
Interest on Securities converted after a record date but prior
to the corresponding interest payment date will be paid to the Holder of
the Securities on the record date but, upon conversion the Holder must pay
Cendant the interest which has accrued and will be paid on such interest
payment date. No such payment need be made with respect to Securities which
will be redeemed after a record date and prior to the corresponding
interest payment date.
Except as provided below, interest will be paid (i) on the
Global Securities to DTC in immediately available funds, (ii) ono the
definitive Securities having an aggregate Principal Amount at Maturity of
$5,000,000 or less, by check mailed to the Holders of such Securities; and
(iii) on the definitive Securities having an aggregate Principal Amount at
Maturity of more than $5,000,000, by wire transfer in immediately available
funds at the election of the Holders of these Securities.
Contingent interest and interest payable upon a conversion of a
Security to semiannual coupon Securities will be computed on the basis of a
360-day year comprised of twelve 30-day months.
If the Principal Amount at Maturity hereof or any portion of
such Principal Amount at Maturity is not paid when due (whether upon
acceleration pursuant to Section 6.2 of the Indenture, upon the date set
for payment of the Redemption Price pursuant to paragraph 5 hereof, upon
the date set for payment of the Purchase Price or Change in Control
Purchase Price pursuant to paragraph 6 hereof or upon the Stated Maturity
of this Security), then in each such case the overdue amount shall, to the
extent permitted by law, bear interest at the rate of 2.50 % per annum,
compounded semiannually, which interest shall accrue from the date such
overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the
Company will make payments in respect of Redemption Prices, Purchase
Prices, Change in Control Purchase Prices and at Stated Maturity to Holders
who surrender Securities to a Paying Agent to collect such payments in
respect of the Securities. The Company will pay cash amounts in money of
the United States that at the time of payment is legal tender for payment
of public and private debts. However, the Company may make such cash
payments by check payable in such money.
3. Paying Agent, Conversion Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as
Paying Agent, Conversion Agent and Registrar. The Company may appoint and
change any Paying Agent, Conversion Agent or Registrar without notice,
other than notice to the Trustee; provided that the Company will maintain
at least one Paying Agent in the State of New York, City of New York,
Borough of Manhattan, which shall initially be an office or agency of the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates
may act as Paying Agent, Conversion Agent or Registrar.
4. Indenture.
The Company issued the Securities under an Indenture dated as
of February 13, 2001 (the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture
Act of 1939, as in effect from time to time (the "TIA"). Capitalized terms
used herein and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement
of those terms.
The Securities are general unsecured obligations of the Company
limited to $1,479,258,000 aggregate Principal Amount at Maturity (subject
to Section 2.7 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities
are redeemable as a whole, or from time to time in part, at any time at the
option of the Company at the Redemption Prices set forth below plus
contingent interest, if any, accrued and unpaid to the Redemption Date,
provided that the Securities are not redeemable prior to February 13, 2004.
The table below shows the Redemption Prices of $1,000 Principal
Amount at Maturity of a Security on the dates shown below and at Stated
Maturity, which prices reflect accrued Original Issue Discount calculated
to each such date. The Redemption Price of a Security redeemed between such
dates shall include an additional amount reflecting the additional Original
Issue Discount accrued since the next preceding date in the table.
Code Issue Accrued Original Redemption
Redemption Date Price Issue Discount Price
--------------- ---------- ---------------- ----------
February 13:
2004............................. $608.41 $47.08 $655.49
2005............................. 608.41 63.57 671.98
2006............................. 608.41 80.48 688.89
2007............................. 608.41 97.81 706.22
2008............................. 608.41 115.57 723.98
2009............................. 608.41 133.79 742.20
2010............................. 608.41 152.46 760.87
2011............................. 608.41 171.60 780.01
2012............................. 608.41 191.22 799.63
2013............................. 608.41 211.34 819.75
2014............................. 608.41 231.96 840.37
2015............................. 608.41 253.10 861.51
2016............................. 608.41 274.77 883.18
2017............................. 608.41 296.99 905.40
2018............................. 608.41 319.76 928.17
2019............................. 608.41 343.11 951.52
2020............................. 608.41 367.05 975.46
At stated maturity............... 608.41 391.59 1,000.00
If converted to semiannual coupon notes following the
occurrence of a Tax Event, the Security will be redeemable at the restated
principal amount plus accrued and unpaid interest from the date of
conversion through the conversion date.
6. Purchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the Holder,
all or any portion of the Securities held by such Holder in integral
multiples of $1,000 Principal Amount at Maturity on the following Purchase
Dates and at the following Purchase Prices per $1,000 Principal Amount at
Maturity, plus, in each case, accrued and unpaid contingent interest to the
Purchase Date upon delivery of a Purchase Notice containing the information
set forth in the Indenture, at any time from the opening of business on the
date that is 20 Business Days prior to such Purchase Date until the close
of business on the third Business Day prior to such Purchase Date, and upon
delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture.
Purchase Price Purchase Price
-------------- --------------
February 13, 2004 $655.49
February 13, 2009 $742.20
February 13, 2014 $840.37
The purchase prices shown above are equal to the issue price
plus accrued original issue discount to the purchase date. If prior to a
purchase date the Securities have been converted to semiannual coupon
Securities following the occurrence of a Tax Event, the Purchase Price will
be equal to the restated principal amount plus accrued and unpaid interest
from the Option Exercise Date to the Purchase Date.
The Purchase Price may be paid, at the option of the Company,
in cash or by the issuance and delivery of shares of CD Common Stock, or in
any combination thereof.
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase
the Securities held by such Holder 35 Business Days after the occurrence of
a Change in Control of the Company occurring on or prior to February 13,
2004 for a Change in Control Purchase Price equal to the Issue Price plus
accrued Original Issue Discount to the Change in Control Purchase Date,
which Change in Control Purchase Price shall be paid in cash provided, that
if prior to a Change in Control Purchase Date the Securities have been
converted to semiannual coupon Securities following the occurrence of a Tax
Event, the Company will be required to purchase the Securities at a cash
price equal to the restated principal amount plus accrued and unpaid
interest from the Option Exercise Date to the Change in Control Purchase
Date.
Holders have the right to withdraw any Purchase Notice or
Change in Control Purchase Notice, as the case may be, by delivering to the
Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture)
sufficient to pay the Purchase Price or Change in Control Purchase Price,
as the case may be, of all Securities or portions thereof to be purchased
as of the Purchase Date or the Change in Control Purchase Date, as the case
may be, is deposited with the Paying Agent on the Business Day following
the Purchase Date or the Change in Control Purchase Date, Original Issue
Discount and other interest ceases to accrue on such Securities (or
portions thereof) immediately after such Purchase Date or Change in Control
Purchase Date, and the Holder thereof shall have no other rights as such
other than the right to receive the Purchase Price or Change in Control
Purchase Price upon surrender of such Security.
7. Notice of Redemption.
Notice of redemption pursuant to paragraph 5 of this Security
will be mailed at least 15 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at the Holder's
registered address. If money sufficient to pay the Redemption Price of all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date,
immediately after such Redemption Date Original Issue Discount ceases to
accrue on such Securities or portions thereof. Securities in denominations
larger than $1,000 of Principal Amount at Maturity may be redeemed in part
but only in integral multiples of $1,000 of Principal Amount at Maturity.
8. Conversion.
Holders may surrender Securities for conversion into shares of
CD Common Stock on any Conversion Date in a Conversion Period if the Sale
Price (as defined in the Indenture) of the CD Common Stock for at least 20
trading days in the 30 trading day period ending on the first day of such
Conversion Period is more than 110% of the accreted conversion price of a
Security with a $1,000 Principal Amount at Maturity on such thirtieth day.
The accreted conversion price is equal to the Issue Price plus accrued
Original Issue Discount of such Security, with the sum thereof divided by
the applicable Conversion Rate. A "Conversion Period" will be the period
from and including the thirtieth trading day in a fiscal quarter to but not
including the thirtieth trading day in the immediately following fiscal
quarter. A Holder may also surrender for conversion a Security or portion
of a Security which has been called for redemption pursuant to paragraph 5
hereof, even if the foregoing provision has not been satisfied, and such
Securities may be surrendered for conversion until the close of business on
the day that is two Business Days prior to the Redemption Date.
In the event that the Company declares a dividend or
distribution described in Section 10.7 of the Indenture, or a dividend or a
distribution described in Section 10.8 of the Indenture where the fair
market value of such dividend or distribution per share of CD Common Stock,
as determined in the Indenture, exceeds 10% of the Sale Price of a share of
CD Common Stock as of the Business Day prior to the date of declaration,
the Securities may be surrendered for conversion beginning on the date the
Company gives notice to the Holders of such right, which shall be not less
than 20 days prior to the Ex-Dividend Time for such dividend or
distribution and Securities may be surrendered for conversion at any time
thereafter until the close of business on the Business Day prior to the
Ex-Dividend Time or until the Company announces that such distribution will
not take place.
In addition, a Holder may surrender for conversion a Security
or portion of a Security during such period, if any, as (i) the credit
rating assigned to the Securities by both Moody's Investor Services and
Standard & Poor's Rating Group is below Baa3 and BBB-, respectively, (ii)
the credit rating assigned to the Securities by both such rating agencies
is suspended or withdrawn or (iii) neither such rating agency is then
rating the Securities.
Finally, in the event the Company is a party to a
consolidation, merger or binding share exchange pursuant to which the
shares of CD Common Stock would be converted into cash, securities or other
property as set forth in Section 10.14 of the Indenture, the Securities may
be surrendered for conversion at any time from and after the date which is
15 days prior to the date the Company announces as the anticipated
effective time until 15 days after the actual date of such transaction.
A Security in respect of which a Holder has delivered a
Purchase Notice or Change in Control Purchase Notice exercising the option
of such Holder to require the Company to purchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with
the terms of the Indenture.
The initial Conversion Rate is 33.40 shares of CD Common Stock
per $1,000 Principal Amount at Maturity, subject to adjustment in certain
events described in the Indenture. A Holder which surrenders Securities for
conversion will receive cash or a check in lieu of any fractional share of
CD Common Stock.
To surrender a Security for conversion, a Holder must (1)
complete and manually sign the conversion notice below (or complete and
manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent, (2) surrender the Security to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents and (4) pay any
transfer or similar tax, if required.
A Holder may convert a portion of a Security if the Principal
Amount at Maturity of such portion is $1,000 or an integral multiple of
$1,000. No payment or adjustment will be made for dividends on the shares
of CD Common Stock except as provided in the Indenture. On conversion of a
Security, that portion of accrued Original Issue Discount attributable to
the period from the Issue Date through the Conversion Date with respect to
the converted Security shall not be cancelled, extinguished or forfeited,
but rather shall be deemed to be paid in full to the Holder thereof through
the delivery of the CD Common Stock (together with the cash payment, if
any, in lieu of fractional shares) in exchange for the Security being
converted pursuant to the terms hereof; and the fair market value of such
shares of CD Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first
in exchange for Original Issue Discount accrued through the Conversion
Date, and the balance, if any, of such fair market value of such CD Common
Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Security being converted pursuant to the
provisions hereof.
The Conversion Rate will be adjusted for dividends or
distributions on CD Common Stock payable in CD Common Stock or other
Capital Stock; subdivisions, combinations or certain reclassifications of
CD Common Stock; distributions to all holders of CD Common Stock of certain
rights to purchase CD Common Stock for a period expiring within 60 days at
less than the Average Sale Price at the Time of Determination; and
distributions to such holders of assets or debt securities of the Company
or certain rights to purchase securities of the Company (excluding certain
cash dividends or distributions). However, no adjustment need be made if
Holders of the Securities may participate in the transaction without
conversion or in certain other cases.
The Company from time to time may voluntarily increase the
Conversion Rate.
If the Company is a party to a consolidation, merger or binding
share exchange or a transfer of all or substantially all of its assets, or
upon certain distributions described in the Indenture, the right to convert
a Security into shares of CD Common Stock may be changed into a right to
convert it into securities, cash or other assets of the Company or another
person.
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the day that is two Business
Days prior to the Redemption Date, may be deemed to be purchased from the
Holders of such Securities at an amount not less than the Redemption Price,
by one or more investment bankers or other purchasers who may agree with
the Company to purchase such Securities from the Holders, to convert them
into shares of CD Common Stock and to make payment for such Securities to
the Trustee in trust for such Holders.
10. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons,
in denominations of $1,000 of Principal Amount at Maturity and integral
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed
in part, the portion of the Security not to be redeemed) or any Securities
in respect of which a Purchase Notice or Change in Control Purchase Notice
has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security 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.
11. Persons Deemed Owners.
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
12. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company
upon written request any money or securities held by them for the payment
of any amount with respect to the Securities that remains unclaimed for two
years, subject to applicable unclaimed property law. After return to the
Company, Holders entitled to the money or securities must look to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of
the Holders of at least a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding and (ii) certain
Defaults may be waived with the written consent of the Holders of a
majority in aggregate Principal Amount at Maturity of the Securities at the
time outstanding. Subject to certain exceptions set forth in the Indenture,
without the consent of any Securityholder, the Company and the Trustee may
amend the Indenture or the Securities so long as such changes, other that
those in clause (ii), do not materially and adversely affect the interest
of Securityholders (i) to cure any ambiguity, omission, defect or
inconsistency, (ii) to comply with Article 5 or Section 10.14 of the
Indenture, (iii) to add to the covenants of the Company for the benefit of
Securityholders or to secure the Company's obligations under the Securities
and this Indenture, or (iv) to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in
payment of the Issue Price plus accrued Original Issue Discount, Redemption
Price, Purchase Price or Change in Control Purchase Price, as the case may
be, in respect of the Securities when the same becomes due and payable,
(ii) default in the payment of interest or liquidated damages, if any, when
due and payable, subject to lapse of time, (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, subject to
notice and lapse of time; (iv) default by the Company in the payment at the
final maturity thereof, after the expiration of any applicable grace
period, of principal of or interest on indebtedness for money borrowed,
other than non-recourse indebtedness, in the principal amount then
outstanding of $50 million or more, or acceleration of any indebtedness in
such principal amount so that it becomes due and payable prior to the date
on which it would otherwise have become due and payable and such
acceleration is not rescinded within 30 days after notice to the Company in
accordance with the Indenture; and (v) certain events of bankruptcy or
insolvency.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or
security. Subject to certain limitations, Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time
outstanding may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of amounts specified in clause (i)
above) if it determines that withholding notice is in their interests.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have
if it were not Trustee.
16. Calculations in Respect of Securities.
The Company will be responsible for making all calculations
called for under the Securities including, but not limited to,
determination of the market prices for the Securities and of the CD Common
Stock and the amounts of contingent interest payments, if any. Any
calculations made in good faith and without manifest error will be final
and binding on Holders of the Securities. The Company will be required to
deliver to the Trustee a schedule of it calculations and the Trustee will
be entitled to rely upon the accuracy of such calculations without
independent verification.
17. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the
Securities.
18. Authentication.
This Security shall not be valid until an authorize signatory
of the Trustee manually signs the Trustee's Certificate of Authentication
on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
20. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THIS SECURITY.
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture which has in it the text
of this Security in larger type. Requests may be made to:
Cendent Corporation
9 West 57th Street
New York, New York 10019
Attn: ___________________
ASSIGNMENT FORM CONVERSION NOTICE
--------------- -----------------
To assign this Security, fill in To convert this Security into CD
the form below: Common Stock of the Company,
check the box [ ]
I or we assign and transfer this
Security to To convert only part of this
________________________________ Security, state the Principal
________________________________ Amount at Maturity to be converted
(Insert assignee's soc. sec. or (which must be $1,000 or an
tax ID no.) integral multiple of $1,000):
________________________________
________________________________ If you want the stock certificate
________________________________ made out in another person's name
(Print or type assignee's name, fill in the form below:
address and zip code) __________________________________
__________________________________
and irrevocably appoint (Insert the other person's soc.
sec. tax ID no.)
_______________________ agent to
transfer this Security on the __________________________________
books of the Company. The agent __________________________________
may substitute another to act __________________________________
for him. __________________________________
__________________________________
(Print or type other person's
name, address and zip code)
Date: __________ Your Signature: ___________________________________
______________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By: _________________________________
Authorized Signatory
EXHIBIT A-2
[Form of Certificated Security]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL
AMOUNT AT MATURITY OF THIS SECURITY IS $391.59 THE ISSUE DATE IS FEBRUARY
13, 2001, AND THE YIELD TO MATURITY IS 2.50% PER ANNUM.
THIS SECURITY AND THE SHARES OF CD COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY OR UPON PURCHASE OF THIS SECURITY BY CENDANT
CORPORATION (THE "COMPANY") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY, THE SHARES OF CD COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY OR UPON PURCHASE OF THIS SECURITY BY CENDANT
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES
TO OFFER, SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON
SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE.]
CENDANT CORPORATION
Zero Coupon Senior Convertible Contingent Debt Securities due 2021
No. CUSIP:
Issue Date: February 13, 2001 Original Issue Discount:
Issue Price: $608.41 $391.59 (for each $1,000
(for each $1,000 Principal Principal Amount at Maturity)
Amount at Maturity)
CENDANT CORPORATION, a Delaware corporation, promises to pay to
Cede & Co. or registered assigns, the Principal Amount at Maturity of
[ ($ ) on February 13, 2021.
This Security shall not bear interest except as specified on
the other side of this Security. Original Issue Discount will accrue as
specified on the other side of this Security. This Security is convertible
as specified on the other side of this Security.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: CENDANT CORPORATION.
By: ____________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee,
certifies that this is one of the
Securities referred to in the
within-mentioned Indenture.
By _____________________________________
Authorized Signatory
Dated:
[FORM OF REVERSE SIDE IS IDENTICAL TO A-1]
EXHIBIT B-1
Transfer Certificate
In connection with any transfer of any of the Securities within
the period prior to the expiration of the holding period applicable to the
sales thereof under Rule 144(k) under the Securities Act of 1933, as
amended (the "Securities Act") (or any successor provision), the
undersigned registered owner of this Security hereby certifies with respect
to $____________ Principal Amount at Maturity of the above-captioned
Securities presented or surrendered on the date hereof (the "Surrendered
Securities") for registration of transfer, or for exchange or conversion
where the securities issuable upon such exchange or conversion are to be
registered in a name other than that of the undersigned registered owner
(each such transaction being a "transfer"), that such transfer complies
with the restrictive legend set forth on the face of the Surrendered
Securities for the reason checked below:
[_] A transfer of the Surrendered Securities is
made to the Company or any subsidiaries; or
[_] The transfer of the Surrendered Securities
complies with Rule 144A under the U.S.
Securities Act of 1933, as amended (the
"Securities Act"); or
[_] The transfer of the Surrendered Securities is
pursuant to an effective registration statement
under the Securities Act, or
[_] The transfer of the Surrendered Securities is
pursuant to another available exemption from the
registration requirement of the Securities Act.
and unless the box below is checked, the undersigned confirms
that, to the undersigned's knowledge, such Securities are not being
transferred to an "affiliate" of the Company as defined in Rule 144 under
the Securities Act (an "Affiliate").
[_] The transferee is an Affiliate of the Company.
DATE: __________________________________
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of such registered
owner must be stated.)
Signature Guaranteed
_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By: _________________________________
Authorized Signatory