EXECUTION COPY
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JETBLUE AIRWAYS CORPORATION,
as Issuer,
and
WILMINGTON TRUST COMPANY,
as Trustee
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INDENTURE
Dated as of
July 15, 2003
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3 1/2% CONVERTIBLE NOTES DUE 2033
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. DEFINITIONS....................................................................1
ARTICLE II
Issue, Description, Execution, Registration and Exchange of Notes
SECTION 2.01. DESIGNATION AMOUNT AND ISSUE OF NOTES..........................................8
SECTION 2.02. FORM OF NOTES..................................................................8
SECTION 2.03. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST...........................9
SECTION 2.04. EXECUTION OF NOTES............................................................10
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES; RESTRICTIONS ON
TRANSFER....................................................................11
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES....................................16
SECTION 2.07. TEMPORARY NOTES...............................................................17
SECTION 2.08. CANCELLATION OF NOTES.........................................................18
SECTION 2.09. CUSIP NUMBERS.................................................................18
ARTICLE III
Redemption and Repurchase of Notes
SECTION 3.01. REDEMPTION OF NOTES AT THE OPTION OF THE COMPANY..............................18
SECTION 3.02. NOTICE OF OPTIONAL REDEMPTION; SELECTION OF NOTES.............................19
SECTION 3.03. PAYMENT OF NOTES CALLED FOR REDEMPTION BY THE COMPANY.........................20
SECTION 3.04. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.................................21
SECTION 3.05. REDEMPTION AT OPTION OF HOLDERS UPON A DESIGNATED EVENT.......................21
SECTION 3.06. REPURCHASE OF NOTES BY THE COMPANY AT OPTION OF THE HOLDER....................24
SECTION 3.07. PROCEDURES FOR THE REPURCHASE OF NOTES........................................24
SECTION 3.08. EFFECT OF REPURCHASE NOTICE...................................................25
SECTION 3.09. DEPOSIT OF PURCHASE PRICE.....................................................26
SECTION 3.10. NOTES REPURCHASED IN PART.....................................................26
SECTION 3.11. REPAYMENT TO THE COMPANY......................................................27
ARTICLE IV
Particular Covenants of the Company
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST.............................................27
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY...............................................27
SECTION 4.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE............................27
SECTION 4.04. PROVISIONS AS TO PAYING AGENT.................................................27
SECTION 4.05. RULE 144A INFORMATION REQUIREMENT.............................................28
SECTION 4.06. COMPLIANCE CERTIFICATE........................................................29
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SECTION 4.07. LIQUIDATED DAMAGES NOTICE.....................................................29
ARTICLE V
Noteholders' Lists and Reports by the Company and the Trustee
SECTION 5.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF NOTEHOLDERS.................30
SECTION 5.02. PRESERVATION AND DISCLOSURE OF LISTS..........................................30
SECTION 5.03. REPORTS BY TRUSTEE............................................................30
SECTION 5.04. REPORTS BY COMPANY............................................................30
ARTICLE VI
Remedies of the Trustee and Noteholders on an Event of Default
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION...............................................31
SECTION 6.02. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR...................................33
SECTION 6.03. APPLICATION OF MONIES COLLECTED BY TRUSTEE....................................34
SECTION 6.04. PROCEEDINGS BY NOTEHOLDER.....................................................35
SECTION 6.05. PROCEEDINGS BY TRUSTEE........................................................35
SECTION 6.06. REMEDIES CUMULATIVE AND CONTINUING............................................36
SECTION 6.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
NOTEHOLDERS.................................................................36
SECTION 6.08. UNDERTAKING TO PAY COSTS......................................................36
ARTICLE VII
The Trustee
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES...........................................37
SECTION 7.02. NOTICE OF DEFAULTS............................................................37
SECTION 7.03. CERTAIN RIGHTS OF THE TRUSTEE.................................................37
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.............................39
SECTION 7.05. MAY HOLD NOTES................................................................39
SECTION 7.06. MONIES TO BE HELD IN TRUST....................................................39
SECTION 7.07. COMPENSATION AND REIMBURSEMENT................................................39
SECTION 7.08. DISQUALIFICATION; CONFLICTING INTERESTS.......................................40
SECTION 7.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.......................................40
SECTION 7.10. RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF SUCCESSOR..................40
SECTION 7.11. ACCEPTANCE OF APPOINTMENT OF SUCCESSOR........................................41
SECTION 7.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...................42
SECTION 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............................42
ARTICLE VIII
The Noteholders
SECTION 8.01. ACTION BY NOTEHOLDERS.........................................................42
SECTION 8.02. PROOF OF EXECUTION BY NOTEHOLDERS.............................................42
SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS................................................43
SECTION 8.04. COMPANY-OWNED NOTES DISREGARDED...............................................43
SECTION 8.05. REVOCATION OF CONSENTS, FUTURE HOLDERS BOUND..................................43
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ARTICLE IX
Meetings of Noteholders
SECTION 9.01. PURPOSE OF MEETINGS...........................................................44
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE...................................................44
SECTION 9.03. CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS....................................44
SECTION 9.04. QUALIFICATIONS FOR VOTING.....................................................45
SECTION 9.05. REGULATIONS...................................................................45
SECTION 9.06. VOTING........................................................................45
SECTION 9.07. NO DELAY OF RIGHTS BY MEETING.................................................46
ARTICLE X
Supplemental Indentures
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.......................46
SECTION 10.02. SUPPLEMENTAL INDENTURE WITH CONSENT OF NOTEHOLDERS...........................47
SECTION 10.03. EFFECT OF SUPPLEMENTAL INDENTURE.............................................48
SECTION 10.04. NOTATION ON NOTES............................................................48
SECTION 10.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO
TRUSTEE....................................................................48
ARTICLE XI
Merger, Consolidation, etc.
SECTION 11.01. MERGERS, CONSOLIDATIONS AND CERTAIN TRANSFERS, LEASES AND
ACQUISITIONS OF ASSETS.......................................................48
SECTION 11.02. SUCCESSOR TO BE SUBSTITUTED..................................................49
SECTION 11.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE.......................................49
ARTICLE XII
Satisfaction and Discharge of Indenture
SECTION 12.01. DISCHARGE OF INDENTURE.......................................................49
SECTION 12.02. DEPOSITED MONIES TO BE HELD IN TRUST BY TRUSTEE..............................50
SECTION 12.03. PAYING AGENT TO REPAY MONIES HELD............................................50
SECTION 12.04. RETURN OF UNCLAIMED MONIES...................................................50
SECTION 12.05. REINSTATEMENT................................................................50
ARTICLE XIII
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 13.01. INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS.............................51
ARTICLE XIV
Conversion of Notes
SECTION 14.01. RIGHT TO CONVERT.............................................................51
SECTION 14.02. CONVERSION PROCEDURES........................................................53
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SECTION 14.03. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES...................................55
SECTION 14.04. CONVERSION RATE..............................................................55
SECTION 14.05. ADJUSTMENT OF CONVERSION RATE................................................55
SECTION 14.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE....................64
SECTION 14.07. TAXES ON SHARES ISSUED.......................................................65
SECTION 14.08. RESERVATION OF SHARES, SHARES TO BE FULLY PAID; COMPLIANCE WITH
GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK.........................65
SECTION 14.09. RESPONSIBILITY OF TRUSTEE....................................................66
SECTION 14.10. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS...................................66
SECTION 14.11. RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON CONVERSION..............67
ARTICLE XV
Miscellaneous Provisions
SECTION 15.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS...................................67
SECTION 15.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION.......................................67
SECTION 15.03. ADDRESSES FOR NOTICES, ETC...................................................67
SECTION 15.04. GOVERNING LAW................................................................68
SECTION 15.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT, CERTIFICATES TO
TRUSTEE....................................................................68
SECTION 15.06. LEGAL HOLIDAYS...............................................................68
SECTION 15.07. TRUST INDENTURE ACT..........................................................68
SECTION 15.08. NO SECURITY INTEREST CREATED.................................................69
SECTION 15.09. BENEFITS OF INDENTURE........................................................69
SECTION 15.10. TABLE OF CONTENTS, HEADINGS, ETC.............................................69
SECTION 15.11. AUTHENTICATING AGENT.........................................................69
SECTION 15.12. EXECUTION IN COUNTERPARTS....................................................70
SECTION 15.13. SEVERABILITY.................................................................70
Exhibit A Form of Note.........................................................................A-1
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INDENTURE
INDENTURE dated as of July 15, 2003 between JetBlue Airways
Corporation, a Delaware corporation (hereinafter called the "COMPANY"), and
Wilmington Trust Company, a Delaware banking corporation, as trustee hereunder
(hereinafter called the "TRUSTEE").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 3 1/2% Convertible Notes due 2033 (hereinafter
called the "NOTES"), in an aggregate principal amount not to exceed $175,000,000
and, to provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture;
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of option to elect redemption upon a
designated event, a form of purchase notice, and a form of conversion notice to
be borne by the Notes are to be substantially in the forms hereinafter provided
for;
WHEREAS, all acts and things necessary to duly authorize the issuance
of the Common Stock issuable upon the conversion of the Notes, and to duly
reserve for issuance the number of shares of Common Stock issuable upon such
conversion, have been done and performed; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Notes by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in this Section 1.01.
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the meanings
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assigned to such terms in the Trust Indenture Act and in the Securities Act as
in force at the date of the execution of this Indenture. The words "herein",
"hereof", "hereunder" and words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other Subdivision. The terms
defined in this Article include the plural as well as the singular.
"ACCEPTED PURCHASED SHARES" has the meaning specified in Section
14.05(e)(B).
"ADJUSTMENT EVENT" has the meaning specified in Section 14.05(j).
"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.
"AGENT MEMBERS" has the meaning specified in Section 2.05(b).
"AVERAGE MARKET PRICE" has the meaning specified in Section 14.05(f).
"BOARD OF DIRECTORS" means the Board of Directors of the Company or a
committee of such Board of Directors duly authorized to act for it hereunder.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which the banking institutions in The City of New
York or the city in which the Corporate Trust Office is located are authorized
or obligated by law or executive order to close or be closed.
"CLOSING SALE PRICE" means, as of any date, the closing sale price per
share of Common Stock (or, if no closing sale price is reported, the average of
the closing bid and ask prices or, if more than one in either case, the average
of the average closing bid and the average closing ask prices) on such date as
reported in composite transactions for the New York Stock Exchange or such other
principal United States securities exchange on which shares of Common Stock may
be traded or, if the shares of Common Stock are not listed on a United States
national or regional securities exchange, as reported by the Nasdaq system or by
the National Quotation Bureau Incorporated. In the absence of such quotations,
the Company shall be entitled to determine the Closing Sale Price on the basis
of such quotations as it considers appropriate. Closing Sale Price shall be
determined without reference to extended or after hours trading.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON STOCK" means any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to
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redemption by the Company. Subject to the provisions of Section 14.06, however,
shares issuable on conversion of Notes shall include only shares of the class
designated as common stock of the Company at the date of this Indenture,
including any Rights attached thereto, (namely, the Common Stock, par value
$0.01) or shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which are not subject to redemption
by the Company; PROVIDED that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"COMPANY" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article 11 and
Section 14.06, shall include its successors and assigns.
"COMPANY REPURCHASE NOTICE" has the meaning specified in Section
3.07(c).
"COMPANY REPURCHASE NOTICE DATE" has the meaning specified in Section
3.07(b).
"CONVERSION DATE" has the meaning specified in Section 14.02.
"CONVERSION NOTICE" has the meaning specified in Section 14.02.
"CONVERSION PRICE" as of any date will equal $1,000 divided by the
Conversion Rate as of such date.
"CONVERSION RATE" has the meaning specified in Section 14.04.
"CORPORATE TRUST OFFICE" or other similar term, means the designated
office of the Trustee at which at any particular time its corporate trust
business as it relates to this Indenture shall be administered, which office is
at the date hereof located Wilmington Trust Company, Rodney Square North, 1100
North Morlut Street, Wilmington, Delaware 11890-0001, Attention : Corporate
Trust Administration; provided that, with respect to the payment of interest of
the Notes, the designated office of the Trustee shall be Wilmington Trust
Company, 520 Madison Avenue, 33rd Floor, New York, New York 10022.
"CUSTODIAN" means Wilmington Trust Company, a Delaware banking
corporation, as custodian with respect to the Notes in global form, or any
successor entity thereto.
"DEFAULT" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.03.
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"DEPOSITARY" means, the clearing agency registered under the Exchange
Act that is designated to act as the Depositary for the Global Notes. The
Depository Trust Company shall be the initial Depositary, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "Depositary" shall mean or include such
successor.
A "DESIGNATED EVENT" will be deemed to have occurred upon a
Fundamental Change or a Termination of Trading.
"DESIGNATED EVENT EXPIRATION TIME" has the meaning specified in
Section 3.05(b).
"DESIGNATED EVENT NOTICE" has the meaning specified in Section
3.05(b).
"DESIGNATED EVENT REDEMPTION DATE" has the meaning specified in
Section 3.05(a).
"DETERMINATION DATE" has the meaning specified in Section 14.05(j).
"DISTRIBUTION" has the meaning specified in Section 14.05(d).
"EVENT OF DEFAULT" means any event specified in Section 6.01(a) as an
Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"EX-DIVIDEND TIME" has the meaning specified in Section 14.01(b).
"EXPIRATION TIME" has the meaning specified in Section 14.05(e)(A).
"FAIR MARKET VALUE" has the meaning specified in Section 14.05(f).
"FUNDAMENTAL CHANGE" means the occurrence of any transaction or event
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, binding share exchange, combination, reclassification,
recapitalization or otherwise) in connection with which all or substantially all
of the Common Stock shall be exchanged for, converted into, acquired for or
constitute solely the right to receive consideration which is not all or
substantially all common stock that is (or, upon consummation of or immediately
following such transaction or event, which will be) listed on a United States
national securities exchange or approved (or, upon consummation of or
immediately following such transaction or event, which will be approved) for
quotation on the Nasdaq National Market or any similar United States system of
automated dissemination of quotations of securities prices.
"GAAP" means United States generally accepted accounting principles.
"GLOBAL NOTE" has the meaning specified in Section 2.02.
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"INDENTURE" means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"INITIAL PURCHASERS" means Morgan Stanley & Co. Incorporated, Raymond
James & Associates, Inc. and Blaylock & Partners, L.P.
"INTEREST" means, when used with reference to the Notes, any interest
payable under the terms of the Notes and Liquidated Damages, if any, payable
under the terms of the Registration Rights Agreement.
"LIQUIDATED DAMAGES" has the meaning specified for "Liquidated Damages
Amount" in Section 2(e) of the Registration Rights Agreement.
"LIQUIDATED DAMAGES NOTICE" has the meaning specified in Section 4.11.
"NOTE" or "NOTES" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"NOTE REGISTER" has the meaning specified in Section 2.05(a).
"NOTE REGISTRAR" has the meaning specified in Section 2.05(a).
"NOTEHOLDER" or "HOLDER" as applied to any Note, or other similar
terms (but excluding the term "beneficial holder"), means any Person in whose
name at the time a particular Note is registered on the Note registrar's books.
"NONELECTING SHARE" has the meaning specified in Section 14.06.
"OFFICERS' CERTIFICATE" of the Company means a certificate signed by
the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the Chief Executive Officer, the President or a Vice President or the
Chief Financial Officer, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, as the case may be, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 4.10 shall be the principal executive, financial or
accounting officer of the Company or the chief operating officer of the Company.
Unless the context otherwise requires, each reference herein to an "Officers'
Certificate" shall mean an Officers' Certificate of the Company. References
herein, or in any Note, to any officer of a Person that is a partnership shall
mean such officer of the partnership or, if none, of a general partner of the
partnership authorized thereby to act on its behalf.
"OFFER EXPIRATION TIME" has the meaning specified in Section
14.05(e)(B).
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
reasonably acceptable to the Trustee.
"OPTIONAL REDEMPTION" has the meaning specified in Section 3.01.
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"OUTSTANDING", when used with reference to Notes and subject to the
provisions of Section 8.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption of which
monies in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or (ii) which
shall have been otherwise discharged in accordance with Article 12;
(c) Notes in lieu of which, or in substitution for which, other
Notes shall have been authenticated and delivered pursuant to the terms of
Section 2.06; and
(d) Notes converted into Common Stock pursuant to Article 14 and
Notes deemed not outstanding pursuant to Article 3.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PORTAL MARKET" means the Private Offerings, Resales and Trading
through Automated Linkages system operated by the National Association of
Securities Dealers, Inc. or any successor thereto.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
"PURCHASED SHARES" has the meaning specified in Section 14.05(e)(A).
"RECORD DATE" has the meaning specified in Section 2.03 with respect
to any interest payment date, and for any other purpose means the record date
established by the Company for a specified purpose.
"RECORD DATE" has the meaning specified in Section 14.05(f).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of July 15, 2003, between the Company and the Initial
Purchasers, as amended from time to time in accordance with its terms.
"REPURCHASE DATE" has the meaning specified in Section 3.06.
"REPURCHASE NOTICE" has the meaning specified in Section 3.06.
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"RESPONSIBLE OFFICER", when used with respect to the Trustee, means an
officer of the Trustee in the Corporate Trust Office assigned and duly
authorized by the Trustee to administer this Indenture.
"RESTRICTED SECURITIES" has the meaning specified in Section 2.05(c).
"RIGHTS" has the meaning specified in Section 14.11.
"RIGHTS AGREEMENT" has the meaning specified in Section 14.11.
"RULE 144A" means Rule 144A as promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"SPINOFF VALUATION PERIOD" has the meaning specified in Section
14.05(d).
"SUBSIDIARY" of any Person means (i) any corporation more than 50% of
whose stock of any class or classes having by the terms of such stock ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or by one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person and (ii) any partnership, association, limited
liability company, joint venture or other entity in which such Person and/or one
or more Subsidiaries of such Person or such Person and one or more Subsidiaries
of such Person has more than a 50% equity interest at the time.
A "TERMINATION OF TRADING" will be deemed to have occurred if the
Common Stock (or other common stock into which the Notes are then convertible)
is neither listed for trading on a United States national securities exchange
nor approved for trading on the Nasdaq National Market.
"TRADING DAY" means (x) if the applicable security is quoted on the
Nasdaq National Market, a day on which trades may be made thereon or (y) if the
applicable security is listed or admitted for trading on the New York Stock
Exchange or such other national securities exchange, a day on which the New York
Stock Exchange or another national securities exchange is open for business or
(z) if the applicable security is not so listed, admitted for trading or quoted,
any day other than a Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or executive order
to close.
"TRADING PRICE" means, on any date, the average of the secondary
market bid quotations for the Notes obtained by the Trustee for $10,000,000
principal amount of Notes at approximately 3:30 p.m., New York City time, on
such date from three independent nationally recognized securities dealers
selected by the Company; PROVIDED that if at least three such bids cannot
reasonably be obtained by the Trustee, but two bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably
be obtained by the Trustee, one bid shall be used; and PROVIDED FURTHER that if
the Trustee cannot reasonably obtain at least one bid for $10,000,000 principal
amount of Notes from a nationally recognized securities dealer or,
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in the Company's reasonable judgment, the bid quotations are not indicative of
the secondary market value of the Notes, then the Trading Price per $1,000
principal amount of Notes shall be deemed to be less than 95% of the product of
the Closing Sale Price and the Conversion Rate.
"TRIGGER EVENT" has the meaning specified in Section 14.05(d).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of this Indenture; PROVIDED that if the
Trust Indenture Act of 1939 is amended after the date hereof, the term "Trust
Indenture Act" shall mean, to the extent required by such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation, and its successors and any corporation resulting from or surviving
any consolidation or merger to which it or its successors may be a party and any
successor trustee at the time serving as successor trustee hereunder.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. DESIGNATION AMOUNT AND ISSUE OF NOTES. The Notes shall
be designated as "3 1/2% Convertible Notes Due 2033". Notes not to exceed the
aggregate principal amount of $175,000,000 (except pursuant to Sections 2.05,
2.06, 3.03, 3.05 and 14.02 hereof) upon the execution of this Indenture, or from
time to time thereafter, may be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company, signed by (a)
its Chairman of the Board of Directors, Vice Chairman of the Board of Directors,
Chief Executive Officer, President, Chief Financial Officer or any Vice
President and (b) its Treasurer or any Assistant Treasurer, or its Secretary or
any Assistant Secretary, without any further action by the Company hereunder.
SECTION 2.02. FORM OF NOTES. The Notes and the Trustee's certificate
of authentication to be borne by such Notes shall be substantially in the form
set forth in Exhibit A. The terms and provisions contained in the form of Note
attached as Exhibit A hereto shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be
tradeable on the Portal Market or as may be required for the Notes to be
tradeable on any other market developed for trading of securities pursuant to
Rule 144A or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes
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may be listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
Section 2.05(b), all of the Notes will be represented by one or more Notes in
global form registered in the name of the Depositary or the nominee of the
Depositary (a "GLOBAL NOTE"). The transfer and exchange of beneficial interests
in any such Global Note shall be effected through the Depositary in accordance
with this Indenture and the applicable procedures of the Depositary. Except as
provided in Section 2.05(b), beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive form and
will not be considered holders of such Global Note.
Any Global Note shall represent such of the outstanding Notes as shall
be specified therein and shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be increased or reduced to reflect redemptions, repurchases, conversions,
transfers or exchanges permitted hereby. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
holder of such Notes in accordance with this Indenture. Payment of principal of
and interest on any Global Note shall be made to the holder of such Global Note.
SECTION 2.03. DATE AND DENOMINATION OF NOTES; PAYMENTS OF INTEREST.
Subject to Section 2.02, the Notes shall be issuable in registered form without
coupons in denominations of $1,000 principal amount and multiples thereof. Each
Note shall be dated the date of its authentication and shall bear interest from
the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised
of twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note register at the close of business on any record date with
respect to any interest payment date shall be entitled to receive the interest
payable on such interest payment date, except that the interest payable upon
redemption or repurchase will be payable to the Person to whom principal is
payable pursuant to such redemption or repurchase (unless the redemption date or
the Repurchase Date, as the case may be, is an interest payment date, in which
case the semi-annual payment of interest becoming due on such date shall be
payable to the holders of such Notes registered as such on the applicable record
date). Interest shall be payable at the office of the Company maintained by the
Company for such purposes in the Borough of Manhattan, The City of New York,
which shall initially be the Corporate Trust Office of the Trustee and may, as
the Company shall specify to the paying agent in writing by each record date, be
paid either (i) by check mailed to the address of the Person entitled thereto as
it appears in the Note register (PROVIDED that any holder of Notes with an
aggregate principal amount in excess of $2,000,000 shall, at the written
election of such holder (such election to be made prior to the relevant record
date and to contain appropriate wire transfer information), be paid by wire
transfer in immediately available funds) or (ii) by transfer to an account
maintained by such Person located
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in the United States; PROVIDED that payments to the Depositary will be made by
wire transfer of immediately available funds to the account of the Depositary or
its nominee. The term "RECORD DATE" with respect to any interest payment date
shall mean the January 1 or July 1 preceding the applicable January 15 or July
15 interest payment date, respectively.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any January 1 or July 1 (herein called "DEFAULTED
INTEREST") shall forthwith cease to be payable to the Noteholder on the relevant
record date by virtue of his having been such Noteholder, and such Defaulted
Interest shall be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
The Company may elect to make payment of any Defaulted Interest to the Persons
in whose names the Notes (or their respective Predecessor Notes) are registered
at the close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five (25) days after the receipt by the Trustee of such notice,
unless the Trustee shall consent to an earlier date), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall be not more than fifteen (15) days and
not less than ten (10) days prior to the date of the proposed payment, and not
less than ten (10) days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first-class postage prepaid, to each holder at his
address as it appears in the Note register, not less than ten (10) days prior to
such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) are registered at the close of business on
such special record date and shall no longer be payable pursuant to the
following clause (2) of this Section 2.03.
The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange or
automated quotation system on which the Notes may be listed or designated for
issuance, and upon such notice as may be required by such exchange or automated
quotation system, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 2.04. EXECUTION OF NOTES. The Notes shall be signed in the
name and on behalf of the Company by the manual or facsimile signature of its
Chairman of the Board of Directors, Chief Executive Officer, President or any
Vice President and attested by its Secretary or any of its Assistant
Secretaries. The signature of any of these officers or the Company's seal on the
Notes may be manual or facsimile. Only such Notes as shall bear thereon a
certificate of
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authentication substantially in the form set forth on the form of Note attached
as Exhibit A hereto, manually executed by the Trustee (or an authenticating
agent appointed by the Trustee as provided by Section 15.11), shall be entitled
to the benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Trustee (or such an authenticating agent) upon any Note
executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company, and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES;
RESTRICTIONS ON TRANSFER. (a) The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to Section 4.02
being herein sometimes collectively referred to as the "NOTE REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Notes and of transfers of Notes. The Note
register shall be in written form or in any form capable of being converted into
written form within a reasonably prompt period of time. The Trustee is hereby
appointed "NOTE REGISTRAR" for the purpose of registering Notes and transfers of
Notes as herein provided. The Company may appoint one or more co-registrars in
accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note
registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 4.02. Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
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All Notes presented or surrendered for registration of transfer or for
exchange, redemption, repurchase or conversion shall (if so required by the
Company or the Note registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, and
the Notes shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made to any holder for any registration of
transfer or exchange of Notes, but either the Company, the Trustee or both may
require payment by the holder of a sum sufficient to cover any tax, assessment
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note registrar shall be
required to exchange or register a transfer of (a) any Notes for a period of
fifteen (15) days next preceding any selection of Notes to be redeemed, (b) any
Notes or portions thereof called for redemption pursuant to Section 3.02, (c)
any Notes or portions thereof surrendered for conversion pursuant to Article 14,
(d) any Notes or portions thereof tendered for redemption (and not withdrawn)
pursuant to Section 3.05 or (e) any Notes or portions thereof tendered for
repurchase (and not withdrawn) pursuant to Section 3.06.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee thereof
and delivered to such Depositary or a nominee thereof or Custodian
therefor, and each such Global Note shall constitute a single Note for
all purposes of this Indenture.
(ii) Notwithstanding any other provision in this Indenture,
no Global Note may be exchanged in whole or in part for Notes
registered, and no transfer of a Global Note in whole or in part may
be registered, in the name of any Person other than the Depositary or
a nominee thereof unless (A) the Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Note or (ii) 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, (B) an Event of Default has occurred and
is continuing and the maturity of the Notes shall have been
accelerated in accordance with the terms of the Notes and any holder
shall have requested in writing the issuance of definitive
certificated securities, or (C) the Company, in its sole discretion,
notifies the Trustee in writing that it no longer wishes to have all
the Notes represented by Global Notes. Any Global Note exchanged
pursuant to clause (A) or (B) above shall be so exchanged in whole and
not in part and any Global Note exchanged pursuant to clause (C) above
may be exchanged in whole or from time to time in part as directed by
the Company. Any Note issued in exchange for a Global Note or any
portion thereof shall be a Global Note; PROVIDED that any such Note so
issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Note.
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(iii) Notes issued in exchange for a Global Note or any
portion thereof pursuant to clause (ii) above and which is not a
Global Note shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount
equal to that of such Global Note 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 any
legends required hereunder. Any Global Note to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Note
registrar. With regard to any Global Note to be exchanged in part,
either such Global Note 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 Note, the principal amount thereof shall
be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records
of the Trustee. Upon any such surrender or adjustment, the Trustee
shall authenticate and make available for delivery the Note issuable
on such exchange to or upon the written order of the Depositary or an
authorized representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary ("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 Note registered in the name of the Depositary or
any nominee thereof, 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 Note 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 Note.
(vi) At such time as all interests in a Global Note have
been redeemed, repurchased, converted, canceled or exchanged for Notes
in certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any
time prior to such cancellation, if any interest in a Global Note is
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, the principal amount of such Global Note shall, in
accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced,
and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such
reduction.
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(c) Every Note that bears or is required under this Section
2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any
Common Stock issued upon conversion of the Notes and required to bear the legend
set forth in Section 2.05(d), collectively, the "RESTRICTED SECURITIES") shall
be subject to the restrictions on transfer set forth in this Section 2.05(c)
(including those set forth in the legend below) unless such restrictions on
transfer shall be waived by written consent of the Company, and the holder of
each such Restricted Security, by such Noteholder's acceptance thereof, agrees
to be bound by all such restrictions on transfer. As used in Sections 2.05(c)
and 2.05(d), the term "TRANSFER" encompasses any sale, pledge, loan, transfer,
assignment, conveyance or other disposition whatsoever of any Restricted
Security or any interest therein.
Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), any
certificate evidencing such Note (and all securities issued in exchange therefor
or substitution thereof, other than Common Stock, if any, issued upon conversion
thereof, which shall bear the legend set forth in Section 2.05(d), if
applicable) shall bear a legend in substantially the following form, unless such
Note has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer), or unless otherwise agreed by the Company in writing,
with written notice thereof to the Trustee:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE
TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS NOTE EXCEPT (A) TO JETBLUE AIRWAYS CORPORATION OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE), IT WILL
FURNISH TO WILMINGTON TRUST COMPANY, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE) AND UPON THE COMPANY'S REQUEST, TO THE
COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THE TRUSTEE AND THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS
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BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS
LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE
PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE
UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTION.
Any Note (or security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with
their terms or as to conditions for removal of the foregoing legend set forth
therein have been satisfied may, upon surrender of such Note for exchange to the
Note registrar in accordance with the provisions of this Section 2.05, be
exchanged for a new Note or Notes, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this Section 2.05(c). If
the Restricted Security surrendered for exchange is represented by a Global Note
bearing the legend set forth in this Section 2.05(c), the principal amount of
the legended Global Note shall be reduced by the appropriate principal amount
and the principal amount of a Global Note without the legend set forth in this
Section 2.05(c) shall be increased by an equal principal amount. If a Global
Note without the legend set forth in this Section 2.05(c) is not then
outstanding, the Company shall execute and the Trustee shall authenticate and
deliver an unlegended Global Note to the Depositary.
(d) Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
any stock certificate representing Common Stock issued upon conversion of any
Note shall bear a legend in substantially the following form, unless such Common
Stock has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer) or such Common Stock has been issued upon conversion of
Notes that have been transferred pursuant to a registration statement that has
been declared effective under the Securities Act, or unless otherwise agreed by
the Company in writing with written notice thereof to the transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE
HOLDER HEREOF AGREES THAT, UNTIL THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE COMMON STOCK EVIDENCED HEREBY, UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), (1) IT
WILL NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED
HEREBY EXCEPT (A)
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TO JETBLUE AIRWAYS CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO
SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE),
IT WILL FURNISH TO EQUISERVE TRUST COMPANY, N.A., AS TRANSFER AGENT
(OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS SUCH TRANSFER AGENT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL
DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED
HEREBY PURSUANT TO CLAUSE (1)(D) ABOVE OR UPON ANY TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
Any such Common Stock as to which such restrictions on transfer shall
have expired in accordance with their terms or as to which the conditions for
removal of the foregoing legend set forth therein have been satisfied may, upon
surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive legend required by
this Section 2.05(d).
(e) Any Note or Common Stock issued upon the conversion of a Note
that, prior to the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), is
purchased or owned by the Company or any Affiliate thereof may not be resold by
the Company or such Affiliate unless registered under the Securities Act or
resold pursuant to an exemption from the registration requirements of the
Securities Act in a transaction which results in such Notes or Common Stock, as
the case may be, no longer being "RESTRICTED SECURITIES" (as defined under Rule
144 under the Securities Act).
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. In case
any Note shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and
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upon its written request the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and make available for delivery, a new Note, bearing
a number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case, the applicant for a substituted Note shall
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to
save each of them harmless for any loss, liability, cost or expense caused by or
connected with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the
case may be, of satisfactory security or indemnity and evidence, as described in
the preceding paragraph, the Trustee or such authenticating agent may
authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, either the Company, the Trustee
or both may require the payment by the holder of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. In case any Note which has
matured or is about to mature or has been called for redemption or has been
tendered for redemption upon a Designated Event (and not withdrawn) or has been
surrendered for repurchase on a Repurchase Date (and not withdrawn) or is to be
converted into Common Stock shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Note, pay or authorize
the payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be,
if the applicant for such payment or conversion shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or in connection with such substitution,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, the Trustee and, if applicable, any paying agent or
conversion agent evidence to their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment or conversion or redemption
or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
or conversion or redemption or repurchase of negotiable instruments or other
securities without their surrender.
SECTION 2.07. TEMPORARY NOTES. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the written request of the Company,
authenticate and deliver temporary
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Notes (printed or lithographed). Temporary Notes shall be issuable in any
authorized denomination, and substantially in the form of the Notes in
certificated form, but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every
such temporary Note shall be executed by the Company and authenticated by the
Trustee or such authenticating agent upon the same conditions and in
substantially the same manner, and with the same effect, as the Notes in
certificated form. Without unreasonable delay, the Company will execute and
deliver to the Trustee or such authenticating agent Notes in certificated form
and thereupon any or all temporary Notes may be surrendered in exchange
therefor, at each office or agency maintained by the Company pursuant to Section
4.02 and the Trustee or such authenticating agent shall authenticate and make
available for delivery in exchange for such temporary Notes an equal aggregate
principal amount of Notes in certificated form. Such exchange shall be made by
the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Notes in
certificated form authenticated and delivered hereunder.
SECTION 2.08. CANCELLATION OF NOTES. If the Company shall acquire
any of the Notes, such acquisition shall not operate as a redemption, repurchase
or satisfaction of the indebtedness represented by such Notes unless and until
the same are delivered to the Trustee for cancellation. All Notes surrendered
for the purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent or any Note registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such canceled Notes in accordance with its customary
procedures.
SECTION 2.09. CUSIP NUMBERS. The Company in issuing the Notes may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Noteholders;
PROVIDED that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. REDEMPTION OF NOTES AT THE OPTION OF THE COMPANY.
Except as otherwise provided in Section 3.05, the Company may not redeem any
Notes prior to July 18, 2006. At any time on or after July 18, 2006, the Company
may redeem any of the Notes at a redemption price of 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest, if the
Closing Sale Price on the Nasdaq National Market excees 150% of the Conversion
Price for at least 20 Trading Days in any period of 30 consecutive Trading Days
ending as of the date the Company gives notice of such redemption or within two
Business Days prior to giving such notice. At any time on or after July 18, 2006
and prior to maturity, the Notes
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may be redeemed at the option of the Company (an "OPTIONAL REDEMPTION"), in
whole or in part, upon notice as set forth in Section 3.02, at 100% of the
principal amount of the Notes to be redeemed, together with accrued and unpaid
interest, if any, to, but excluding the date fixed for redemption.
SECTION 3.02. NOTICE OF OPTIONAL REDEMPTION; SELECTION OF NOTES. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Notes pursuant to Section 3.01, it shall fix a date
for redemption and it or, at its written request received by the Trustee not
fewer than forty-five (45) days prior (or such shorter period of time as may be
acceptable to the Trustee) to the date fixed for redemption, the Trustee in the
name of and at the expense of the Company, shall mail or cause to be mailed a
notice of such redemption not fewer than thirty (30) nor more than sixty (60)
days prior to the redemption date to each holder of Notes so to be redeemed as a
whole or in part at its last address as the same appears on the Note register;
PROVIDED that if the Company shall give such notice, it shall also give written
notice of the redemption date to the Trustee. Such mailing shall be by first
class mail. The notice, if mailed in the manner herein provided, shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note. Concurrently with the mailing of any such notice
of redemption, the Company shall issue a press release announcing such
redemption, the form and content of which press release shall be determined by
the Company in its sole discretion. The failure to issue any such press release
or any defect therein shall not affect the validity of the redemption notice or
any of the proceedings for the redemption of any Note called for redemption.
Each such notice of redemption shall specify the aggregate principal
amount of Notes to be redeemed, the CUSIP number or numbers of the Notes being
redeemed, the date fixed for redemption (which shall be a Business Day), the
redemption price at which Notes are to be redeemed, the place or places of
payment, that payment will be made upon presentation and surrender of such
Notes, that interest accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date interest thereon or on
the portion thereof to be redeemed will cease to accrue. Such notice shall also
state the current Conversion Rate and the date on which the right to convert
such Notes or portions thereof into Common Stock will expire. If fewer than all
the Notes are to be redeemed, the notice of redemption shall identify the Notes
to be redeemed (including CUSIP numbers, if any). In case any Note is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that, on and after the
redemption date, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section 3.02, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting as
the paying agent, set aside, segregate and hold in trust as provided in Section
4.04) an amount of money in immediately available funds sufficient to redeem on
the redemption date all the Notes (or portions thereof) so called for redemption
(other than those theretofore surrendered for conversion into Common Stock) at
the appropriate redemption price, together with accrued interest to, but
excluding, the redemption date; PROVIDED that if such payment is made on the
redemption date it must be received by the Trustee or paying
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agent, as the case may be, by 10:00 a.m. New York City time on such date. The
Company shall be entitled to retain any interest, yield or gain on amounts
deposited with the Trustee or any paying agent pursuant to this Section 3.02 in
excess of amounts required hereunder to pay the redemption price and accrued
interest to, but excluding, the redemption date. If any Note called for
redemption is converted pursuant hereto prior to such redemption date, any money
deposited with the Trustee or any paying agent or so segregated and held in
trust for the redemption of such Note shall be paid to the Company upon its
written request, or, if then held by the Company, shall be discharged from such
trust. Whenever any Notes are to be redeemed pursuant to Section 3.01, the
Company will give the Trustee written notice in the form of an Officers'
Certificate not fewer than forty-five (45) days (or such shorter period of time
as may be acceptable to the Trustee) prior to the redemption date as to the
aggregate principal amount of Notes to be redeemed.
If less than all of the outstanding Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof of the Global Note or the
Notes in certificated form to be redeemed (in principal amounts of $1,000 or
multiples thereof) by lot, on a pro rata basis or by another method the Trustee
deems fair and appropriate. If any Note selected for partial redemption is
submitted for conversion in part after such selection, the portion of such Note
submitted for conversion shall be deemed (so far as may be possible) to be the
portion to be selected for redemption. The Notes (or portions thereof) so
selected shall be deemed duly selected for redemption for all purposes hereof,
notwithstanding that any such Note is submitted for conversion in part before
the mailing of the notice of redemption.
Upon any redemption of less than all of the outstanding Notes, the
Company and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Notes as are unconverted and outstanding at
the time of redemption, treat as outstanding any Notes surrendered for
conversion during the period of fifteen (15) days next preceding the mailing of
a notice of redemption and may (but need not) treat as outstanding any Note
authenticated and delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
SECTION 3.03. PAYMENT OF NOTES CALLED FOR REDEMPTION BY THE COMPANY.
If notice of redemption has been given as provided in Section 3.02, the Notes or
portion of Notes with respect to which such notice has been given shall, unless
converted into Common Stock pursuant to the terms hereof, become due and payable
on the date fixed for redemption and at the place or places stated in such
notice at the applicable redemption price, together with interest accrued to
(but excluding) the redemption date, and on and after said date (unless the
Company shall default in the payment of such Notes at the redemption price,
together with interest accrued to said date) interest on the Notes or portion of
Notes so called for redemption shall cease to accrue and, after the close of
business on the Business Day immediately preceding the redemption date, such
Notes shall cease to be convertible into Common Stock and, except as provided in
Sections 7.06 and 12.04, to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of such Notes
except the right to receive the redemption price thereof and unpaid interest to
(but excluding) the redemption date. On presentation and surrender of such Notes
at a place of payment in said notice specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to, but excluding, the
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redemption date; PROVIDED that if the applicable redemption date is an interest
payment date, the interest payable on such interest payment date shall be
payable to the holders of record of such Notes on the applicable record date
instead of the holders surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes
or mail any notice of redemption during the continuance of a default in payment
of interest on the Notes. If any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the redemption date at a rate equal to 1% per
annum plus the rate borne by the Note (without duplication of the 1% increase
provided for under Section 6.02) and such Note shall remain convertible into
Common Stock until the principal and interest shall have been paid or duly
provided for.
SECTION 3.04. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more investment
banks or other purchasers to purchase such Notes by paying to the Trustee in
trust for the Noteholders, on or before the date fixed for redemption, an amount
not less than the applicable redemption price, together with interest accrued
to, but excluding, the date fixed for redemption, of such Notes. Notwithstanding
anything to the contrary contained in this Article 3, the obligation of the
Company to pay the redemption price of such Notes, together with interest
accrued to, but excluding, the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Notes not duly
surrendered for conversion by the holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such holders and (notwithstanding anything to the contrary
contained in Article 14) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the date fixed for redemption
(and the right to convert any such Notes shall be extended through such time),
subject to payment of the above amount as aforesaid. At the direction of the
Company, the Trustee shall hold and dispose of any such amount paid to it in the
same manner as it would monies deposited with it by the Company for the
redemption of Notes. Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Notes shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture.
SECTION 3.05. REDEMPTION AT OPTION OF HOLDERS UPON A DESIGNATED
EVENT. (a) If there shall occur a Designated Event at any time prior to
maturity of the Notes, then each Noteholder shall have the right, at such
holder's option, to require the Company to redeem all of such holder's Notes, or
any portion thereof that is a multiple of $1,000 principal amount, on the date
(the "DESIGNATED EVENT REDEMPTION DATE") that is thirty (30) days after the date
of the Designated Event Notice (as defined in Section 3.05(b)) of such
Designated Event (or, if such
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30th day is not a Business Day, the next succeeding Business Day) at a
redemption price equal to 100% of the principal amount thereof, together with
accrued interest to, but excluding, the Designated Event Redemption Date;
PROVIDED that if such Designated Event Redemption Date is an interest payment
date, then the interest payable on such interest payment date shall be paid to
the holders of record of the Notes on the applicable record date instead of the
holders surrendering the Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall
execute and, upon the Company's written direction to the Trustee, the Trustee
shall authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Notes
presented.
(b) On or before the tenth day after the occurrence of a
Designated Event, the Company or at its written request (which must be received
by the Trustee at least five (5) Business Days prior to the date the Trustee is
requested to give notice as described below, unless the Trustee shall agree in
writing to a shorter period), the Trustee, in the name of and at the expense of
the Company, shall mail or cause to be mailed to all holders of record on the
date of the Designated Event a notice (the "DESIGNATED EVENT NOTICE") of the
occurrence of such Designated Event and of the redemption right at the option of
the holders arising as a result thereof. Such notice shall be mailed in the
manner and with the effect set forth in the first paragraph of Section 3.02
(without regard for the time limits set forth therein). If the Company shall
give such notice, the Company shall also deliver a copy of the Designated Event
Notice to the Trustee at such time as it is mailed to Noteholders. Concurrently
with the mailing of any Designated Event Notice, the Company shall issue a press
release announcing such Designated Event referred to in the Designated Event
Notice, the form and content of which press release shall be determined by the
Company in its sole discretion. The failure to issue any such press release or
any defect therein shall not affect the validity of the Designated Event Notice
or any proceedings for the redemption of any Note which any Noteholder may elect
to have the Company redeem as provided in this Section 3.05.
Each Designated Event Notice shall specify the circumstances
constituting the Designated Event, the Designated Event Redemption Date, the
price at which the Company shall be obligated to redeem Notes, that the holder
must exercise the redemption right on or prior to the close of business on the
Designated Event Redemption Date (the "DESIGNATED EVENT EXPIRATION TIME"), that
the holder shall have the right to withdraw any Notes surrendered prior to the
Designated Event Expiration Time, a description of the procedure which a
Noteholder must follow to exercise such redemption right and to withdraw any
surrendered Notes, the place or places where the holder is to surrender such
holder's Notes, the amount of interest accrued on each Note to (but excluding)
the Designated Event Redemption Date and the CUSIP number or numbers of the
Notes (if then generally in use).
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Noteholders' redemption rights or affect the validity of
the proceedings for the redemption of the Notes pursuant to this Section 3.05.
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(c) For a Note, other than a Global Note, to be so redeemed at the
option of the holder, the Company must receive at the office or agency of the
Company maintained for that purpose pursuant to Section 4.02, such Note with the
form entitled "Option to Elect Repayment Upon A Designated Event" on the reverse
thereof duly completed, together with such Notes duly endorsed for transfer, on
or before the Designated Event Expiration Time. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note for
redemption shall be determined by the Company, whose determination shall be
final and binding absent manifest error.
(d) On or prior the Designated Event Redemption Date, the Company
will deposit with the Trustee or with one or more paying agents (or, if the
Company is acting as the paying agent, set aside, segregate and hold in trust as
provided in Section 4.04) an amount of money sufficient to redeem on the
Designated Event Redemption Date all the Notes to be redeemed on such date at
the appropriate redemption price, together with accrued interest to, but
excluding, the Designated Event Redemption Date; PROVIDED that if such payment
is made on the Designated Event Redemption Date it must be received by the
Trustee or paying agent, as the case may be, by 10:00 a.m. New York City time,
on such date. Payment for Notes surrendered for redemption (and not withdrawn)
prior to the Designated Event Expiration Time will be made promptly (but in no
event more than five (5) Business Days) following the Designated Event
Redemption Date by mailing checks for the amount payable to the holders of such
Notes entitled thereto as they shall appear in the Note register.
(e) In the case of a reclassification, change, consolidation,
merger, combination, binding share exchange, sale or conveyance to which Section
14.06 applies, in which the Common Stock of the Company is changed or exchanged
as a result into the right to receive stock, securities or other property or
assets (including cash), which includes shares of Common Stock of the Company or
shares of common stock of another Person that are, or upon issuance will be,
traded on a United States national securities exchange or approved for trading
on an established automated over-the-counter trading market in the United States
and such shares constitute at the time such change or exchange becomes effective
in excess of 50% of the aggregate fair market value of such stock, securities or
other property or assets (including cash) (as determined by the Company, which
determination shall be conclusive and binding), then the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture (accompanied by an Opinion of Counsel that such supplemental indenture
complies with the Trust Indenture Act as in force at the date of execution of
such supplemental indenture) modifying the provisions of this Indenture relating
to the right of holders of the Notes to cause the Company to repurchase the
Notes following a Designated Event, including without limitation the applicable
provisions of this Section 3.05 and the definitions of Common Stock and
Designated Event, as appropriate, as determined in good faith by the Company
(which determination shall be conclusive and binding), to make such provisions
apply to such other Person if different from the Company and the common stock
issued by such Person (in lieu of the Company and the Common Stock of the
Company).
(f) The Company will comply with the provisions of Rule 13e-4 and
any other tender offer rules under the Exchange Act to the extent then
applicable in connection with the redemption rights of the holders of Notes in
the event of a Designated Event.
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SECTION 3.06. REPURCHASE OF NOTES BY THE COMPANY AT OPTION OF THE
HOLDER. Notes shall be purchased by the Company pursuant to the terms of the
Notes at the option of the holder on July 15, 2008, July 15, 2013, July 15,
2018, July 15, 2023 and July 15, 2028 (each, a "REPURCHASE Date"), at a purchase
price of 100% of the principal amount, plus any accrued and unpaid interest, in
each case, to, but excluding, such Repurchase Date, subject to the provisions of
Section 3.07. Repurchases of Notes under this Section 3.06 shall be made, at the
option of the holder thereof, upon:
(a) delivery to the Trustee (or other paying agent appointed by
the Company) by a holder of a duly completed Repurchase Notice (a
"REPURCHASE NOTICE") in the form set forth on the reverse of the Note
during the period beginning at any time from the opening of business on the
date that is 20 Business Days prior to the applicable Repurchase Date until
the close of business on such Repurchase Date; and
(b) delivery or book-entry transfer of the Notes to the Trustee
(or other paying agent appointed by the Company) at any time after delivery
of the applicable Repurchase Notice (together with all necessary
endorsements) at the office of the Trustee (or other paying agent appointed
by the Company), such delivery being a condition to receipt by the holder
of the purchase price therefor; PROVIDED that such purchase price shall be
so paid pursuant to this Section 3.06 only if the Note so delivered to the
Trustee (or other paying agent appointed by the Company) shall conform in
all respects to the description thereof in the related Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant to this
Section 3.06, a portion of a Note, if the principal amount 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 Note also apply to the purchase of such
portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.06 shall be consummated by the delivery of the consideration to
be received by the holder promptly following the later of the Repurchase Date
and the time of the book-entry transfer or delivery of the Note.
Notwithstanding anything herein to the contrary, any holder delivering
to the Trustee (or other paying agent appointed by the Company) the Repurchase
Notice contemplated by this Section 3.06 shall have the right to withdraw such
Repurchase Notice at any time prior to the close of business on the Repurchase
Date by delivery of a written notice of withdrawal to the Trustee (or other
paying agent appointed by the Company) in accordance with Section 3.08.
The Trustee (or other paying agent appointed by the Company) shall
promptly notify the Company of the receipt by it of any Repurchase Notice or
written notice of withdrawal thereof.
SECTION 3.07. PROCEDURES FOR THE REPURCHASE OF NOTES. (a) At least
three Business Days before each Company Repurchase Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
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(i) the information required by Section 3.07(c) in the
Company Repurchase Notice, and
(ii) whether the Company desires the Trustee to give the
Company Repurchase Notice required by Section 3.07(c).
(b) The Company Repurchase Notice, as provided in Section 3.07(c),
shall be sent to holders not less than 20 Business Days prior to such Repurchase
Date (the "COMPANY REPURCHASE NOTICE DATE").
(c) In connection with any repurchase of Notes, the Company shall,
no less than 20 Business Days prior to each Repurchase Date, give notice to
holders (with a copy to the Trustee) setting forth information specified in this
Section 3.07(c) (the "COMPANY REPURCHASE NOTICE").
Each Company Repurchase Notice shall:
(1) state the repurchase price and the Repurchase Date to
which the Company Repurchase Notice relates;
(2) include a form of Repurchase Notice;
(3) state the name and address of the Trustee (or other paying
agent or conversion agent appointed by the Company);
(4) state that Notes must be surrendered to the Trustee (or
other paying agent appointed by the Company) to collect the purchase
price;
(5) if the Notes are then convertible, state that Notes as to
which a Repurchase Notice has been given may be converted only if the
Repurchase Notice is withdrawn in accordance with the terms of this
Indenture; and
(6) state the CUSIP number of the Notes.
Company Repurchase Notices may be given by the Company or, at the Company's
request, the Trustee shall give such Company Repurchase Notice in the Company's
name and at the Company's expense.
(d) The Company will comply with the provisions of Rule 13e-4 and
any other tender offer rules under the Exchange Act to the extent then
applicable in connection with the repurchase rights of the holders of Notes.
SECTION 3.08. EFFECT OF REPURCHASE NOTICE. Upon receipt by the
Trustee (or other paying agent appointed by the Company) of the Repurchase
Notice specified in Section 3.06, the holder of the Note in respect of which
such Repurchase Notice was given shall (unless such Repurchase Notice is validly
withdrawn) thereafter be entitled to receive solely the purchase price with
respect to such Note. Such purchase price shall be paid to such holder, subject
to receipt of funds and/or Notes by the Trustee at its Corporate Trust Office in
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Wilmington Delaware (or other paying agent appointed by the Company), promptly
following the later of (x) the Repurchase Date with respect to such Note
(provided the holder has satisfied the conditions in Section 3.06) and (y) the
time of delivery of such Note to the Trustee (or other paying agent appointed by
the Company) by the holder thereof in the manner required by Section 3.06. Notes
in respect of which a Repurchase Notice has been given by the holder thereof may
not be converted pursuant to Article 14 hereof on or after the date of the
delivery of such Repurchase Notice unless such Repurchase Notice has first been
validly withdrawn.
A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Corporate Trust Office of the Trustee in Wilmington,
Delaware (or other paying agent appointed by the Company) in accordance with the
Repurchase Notice at any time prior to the close of business on the Repurchase
Date, specifying:
(a) the certificate number, if any, of the Note in respect of
which such notice of withdrawal is being submitted, or the appropriate
Depositary information if the Note in respect of which such notice of
withdrawal is being submitted is represented by a Global Note,
(b) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains
subject to the original Repurchase Notice and which has been or will be
delivered for purchase by the Company.
SECTION 3.09. DEPOSIT OF PURCHASE PRICE. (a) Prior to 10:00 a.m.
(New York City Time) on the Business Day following the Repurchase Date, the
Company shall deposit with the Trustee (or other paying agent appointed by the
Company; or, if the Company is acting as the paying agent, shall segregate and
hold in trust as provided in Section 4.04) an amount of cash (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate purchase price of all the Notes or portions thereof that are to be
purchased as of the Repurchase Date.
(b) If the Trustee or other paying agent appointed by the Company,
or the Company or a subsidiary or affiliate of either of them if such entity is
acting as the paying agent, holds cash sufficient to pay the aggregate purchase
price of all the Notes, or portions thereof that are to purchased as of the
Repurchase Date, on or after the Repurchase Date (i) the Notes will cease to be
outstanding, (ii) interest on the Notes will cease to accrue, and (iii) all
other rights of the holders of such Notes will terminate, whether or not
book-entry transfer of the Notes has been made or the Notes have been delivered
to the Trustee or other paying agent, other than the right to receive the
purchase price upon delivery of the Notes.
SECTION 3.10. NOTES REPURCHASED IN PART. Upon presentation of any
Note repurchased only in part, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination, in
aggregate principal amount equal to the unrepurchased portion of the Notes
presented.
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SECTION 3.11. REPAYMENT TO THE COMPANY. The Trustee (or other paying
agent appointed by the Company) shall return to the Company any cash that remain
unclaimed, together with interest, if any, thereon, held by them for the payment
of the purchase price; PROVIDED that to the extent that the aggregate amount of
cash deposited by the Company pursuant to Section 3.09 exceeds the aggregate
purchase price of the Notes or portions thereof which the Company is obligated
to purchase as of the Repurchase Date then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Repurchase Date,
the Trustee shall return any such excess to the Company together with interest,
if any, thereon.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL AND INTEREST. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of (including the redemption price upon redemption or the purchase
price upon repurchase, in each case pursuant to Article 3), and interest, on
each of the Notes at the places, at the respective times and in the manner
provided herein and in the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain an office or agency in the Borough of Manhattan, City of New York,
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or for conversion, redemption or repurchase and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee.
The Company may also from time to time designate co-registrars and one
or more offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee as paying agent,
Note registrar, Custodian and conversion agent and the Corporate Trust Office
shall be considered as one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 7.10(b) and the
third paragraph of Section 7.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Notes it can identify from its records.
SECTION 4.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 4.04. PROVISIONS AS TO PAYING AGENT. (a) If the Company
shall appoint a paying agent other than the Trustee, or if the Trustee shall
appoint such a paying agent, the
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Company will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any other
obligor on the Notes) in trust for the benefit of the holders of the
Notes;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Notes) to make any payment
of the principal of, or interest on, the Notes when the same shall be
due and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal of, or
interest on, the Notes, deposit with the paying agent a sum (in funds which are
immediately available on the due date for such payment) sufficient to pay such
principal or interest, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of any failure to take such action; PROVIDED
that if such deposit is made on the due date, such deposit shall be received by
the paying agent by 10:00 a.m. New York City time, on such date.
(b) If the Company shall act as the paying agent, it will, on or
before each due date of the principal of, or interest on, the Notes, set aside,
segregate and hold in trust for the benefit of the holders of the Notes a sum
sufficient to pay such principal or interest so becoming due and will promptly
notify the Trustee of any failure to take such action and of any failure by the
Company (or any other obligor under the Notes) to make any payment of the
principal of, or interest on, the Notes when the same shall become due and
payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to Sections 12.03 and 12.04.
The Trustee shall not be responsible for the actions of any other
paying agents (including the Company if acting as the paying agent) and shall
have no control of any funds held by such other paying agents.
SECTION 4.05. RULE 144A INFORMATION REQUIREMENT. Within the period
prior to the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the
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Securities Act (or any successor provision), the Company covenants and agrees
that it shall, during any period in which it is not subject to Section 13 or
15(d) under the Exchange Act, make available to any holder or beneficial holder
of Notes or any Common Stock issued upon conversion thereof which continue to be
Restricted Securities in connection with any sale thereof and any prospective
purchaser of Notes or such Common Stock designated by such holder or beneficial
holder, the information required pursuant to Rule 144A(d)(4) under the
Securities Act upon the request of any holder or beneficial holder of the Notes
or such Common Stock and it will take such further action as any holder or
beneficial holder of such Notes or such Common Stock may reasonably request, all
to the extent required from time to time to enable such holder or beneficial
holder to sell its Notes or Common Stock without registration under the
Securities Act within the limitation of the exemption provided by Rule 144A, as
such Rule may be amended from time to time. Upon the request of any holder or
any beneficial holder of the Notes or such Common Stock, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
SECTION 4.06. COMPLIANCE CERTIFICATE. The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company, 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 the status thereof of which the signer may have knowledge.
The Company will deliver to the Trustee, as soon as possible and in
any event within 30 days after the Company becomes aware of any Event of Default
or an event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
default or Event of Default and the action that the Company has taken, is taking
or proposes to take with respect thereto.
Any notice required to be given under this Section 4.06 shall be
delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.
SECTION 4.07. LIQUIDATED DAMAGES NOTICE. In the event that the
Company is required to pay Liquidated Damages to holders of Notes pursuant to
the Registration Rights Agreement, the Company will provide written notice
("LIQUIDATED DAMAGES NOTICE") to the Trustee of its obligation to pay Liquidated
Damages no later than fifteen (15) days prior to the proposed payment date for
the Liquidated Damages, and the Liquidated Damages Notice shall set forth the
amount of Liquidated Damages to be paid by the Company on such payment date. The
Trustee shall not at any time be under any duty or responsibility to any holder
of Notes to determine the Liquidated Damages, or with respect to the nature,
extent or calculation of the amount of Liquidated Damages when made, or with
respect to the method employed in such calculation of the Liquidated Damages.
ARTICLE V
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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SECTION 5.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS. The Company covenants and agrees that it will furnish or cause to
be furnished to the Trustee, semiannually, not more than fifteen (15) days after
each January 1 and July 1 in each year beginning with January 1, 2004, and at
such other times as the Trustee may request in writing, within thirty (30) days
after receipt by the Company of any such request (or such lesser time as the
Trustee may reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form as the Trustee may
reasonably require of the names and addresses of the registered holders of Notes
as of a date not more than fifteen (15) days (or such other date as the Trustee
may reasonably request in order to so provide any such notices) prior to the
time such information is furnished, except that no such list need be furnished
by the Company to the Trustee so long as the Trustee is acting as the sole Note
registrar.
SECTION 5.02. PRESERVATION AND DISCLOSURE OF LISTS. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 5.01 or maintained
by the Trustee in its capacity as Note registrar or co-registrar in respect of
the Notes, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other holders of
Notes with respect to their rights under this Indenture or under the Notes, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of holders of Notes made
pursuant to the Trust Indenture Act.
SECTION 5.03. REPORTS BY TRUSTEE. (a) Within sixty (60) days after
December 30 of each year commencing with the year 2003, the Trustee shall
transmit to holders of Notes such reports dated as of December 30 of the year in
which such reports are made concerning the Trustee and its actions under this
Indenture as shall be required, if any, pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission
to holders of Notes, be filed by the Trustee with each stock exchange and
automated quotation system upon which the Notes are listed and with the Company.
The Company will promptly notify the Trustee in writing when the Notes are
listed on any stock exchange or automated quotation system or delisted
therefrom.
SECTION 5.04. REPORTS BY COMPANY. The Company shall file with the
Trustee and transmit to holders of the Notes, such information, documents and
other reports as it is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act within 15 days after the same is so required to
be filed with the Commission. 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
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of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
ARTICLE VI
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT; ACCELERATION. In case one or more
of the following Events of Default (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) shall
have occurred and be continuing:
(a) default in the payment of any installment of interest or
Liquidated Damages with respect to any of the Notes as and when the same
shall become due and payable, and continuance of such default for a period
of thirty (30) days; or
(b) default in the payment of the principal of any of the Notes as
and when the same shall become due and payable either at maturity or in
connection with any redemption or repurchase, in each case pursuant to
Article 3, by acceleration or otherwise; or
(c) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the
Notes or in this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section 6.01
specifically dealt with) continued for a period of sixty (60) days after
the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or
the Company and a Responsible Officer of the Trustee by the holders of at
least twenty-five percent (25%) in aggregate principal amount of the Notes
at the time outstanding determined in accordance with Section 8.04; or
(d) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of the property of the Company, or ordering the winding up
or liquidation of the affairs of the Company, and the continuance of any
such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(e) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company to
the entry of a decree or order for relief in respect of the
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Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding against
the Company or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law,
or the consent by the Company to the filing of such a petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of
any substantial part of the property of the Company, or the making by the
Company of an assignment for the benefit of creditors, or the admission by
the Company in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance
of any such action;
then, and in each and every such case (other than an Event of Default specified
in 6.01(d) or 6.01(e) that occurs with respect to the Company), unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the holders of not less than twenty-five percent (25%) in
aggregate principal amount of the Notes then outstanding hereunder determined in
accordance with Section 8.04, by notice in writing to the Company (and to the
Trustee if given by Noteholders) specifying the respective Event of Default and
stating that it is a "notice of acceleration", may declare the principal of all
the Notes and the interest accrued thereon to be due and payable immediately,
and upon receipt of such notice the same shall become and shall be immediately
due and payable. If an Event of Default specified in 6.01(d) or 6.01(e)
involving the Company occurs, the principal of all the Notes and the interest
accrued thereon shall be immediately and automatically due and payable without
necessity of further action. This provision, however, is subject to the
conditions that if, at any time after the principal of the Notes shall have been
so declared due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest upon all Notes and the principal of any and
all Notes which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest (to the extent that payment of such
interest is enforceable under applicable law) and on such principal at the rate
borne by the Notes plus 1%, to the date of such payment or deposit) and amounts
due to the Trustee pursuant to Section 7.07, and if any and all defaults under
this Indenture, other than the nonpayment of principal of, and accrued interest
on, Notes which shall have become due by acceleration, shall have been cured or
waived pursuant to Section 6.07, then and in every such case the holders of a
majority in aggregate principal amount of the Notes then outstanding, by written
notice to the Company and to the Trustee, may waive all defaults or Events of
Default and rescind and annul such declaration and its consequences; but no such
waiver or rescission and annulment shall extend to or shall affect any
subsequent default or Event of Default, or shall impair any right consequent
thereon. The Company shall notify in writing a Responsible Officer of the
Trustee, promptly upon becoming aware thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and
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powers of the Company, the holders of Notes, and the Trustee shall continue as
though no such proceeding had been taken.
SECTION 6.02. PAYMENTS OF NOTES ON DEFAULT; SUIT THEREFOR. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of thirty
(30) days, or (b) in case default shall be made in the payment of the principal
of any of the Notes as and when the same shall have become due and payable,
whether at maturity of the Notes or in connection with any redemption or
repurchase, by or under this Indenture or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Notes, the whole amount that then shall have become due and payable on all
such Notes for principal or interest, as the case may be, with interest upon the
overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Notes, plus 1% and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys and
counsel, and all other amounts due the Trustee under Section 7.07. Until such
demand by the Trustee, the Company may pay the principal of, and interest on,
the Notes to the registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under Title
11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative to
the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes 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 pursuant to the provisions of this Section 6.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Notes, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
of the Noteholders allowed in such judicial proceedings relative to the Company
or any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amounts due the Trustee under Section 7.07, and any receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby
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authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount due it for
reasonable compensation, expenses, advances and disbursements, including counsel
fees and expenses incurred by it up to the date of such di