SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
T-3
FOR
APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST
INDENTURE ACT OF 1939
CBRL
GROUP, INC.
(Name
of Applicant)
305
HARTMANN DRIVE,
P.O.
BOX 787
LEBANON,
TENNESSEE 37088-0787
(Address
of Principal Executive Offices)
SECURITIES
TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
|
TITLE
OF CLASS
|
AMOUNT
|
|
|
Zero
Coupon Convertible Notes due 2032
|
Up
to $422,050,000 aggregate principal amount at
maturity
|
Approximate
Date of Proposed Public Offering:
As
soon as practicable after the date of this Application for Qualification
but
not
prior to April 16, 2007.
|
Name
and address of agent for service:
Lawrence
E. White
Senior
Vice President - Finance and Chief Financial Officer
CBRL
Group, Inc.
305
Hartmann Drive,
P.O.
Box 787
Lebanon,
Tennessee 37088-0787
Telephone:
(615) 444-5533
|
With
a Copy to:
Gary
M. Brown
Baker,
Donelson, Bearman, Caldwell
&
Berkowitz, PC
Commerce
Center, Suite 1000
211
Commerce Street
Nashville,
Tennessee 37201
Telephone:
(615) 726-5763
Facsimile:
(615) 744-5763
|
The
obligor hereby amends this application for qualification on such date or dates
as may be necessary to delay its effectiveness until (i) the 20th day after
the
filing of an amendment which specifically states that it shall supersede this
application, or (ii) such date as the Commission, acting pursuant to Section
307(c) of the Trust Indenture Act of 1939, may determine upon the written
request of the obligor.
GENERAL
1.
General Information.
(a) Form
of
Organization: Corporation
(b) State
or
other sovereign power under the laws of which organized: Tennessee
2.
Securities Act Exemption Applicable.
CBRL
Group, Inc. (the “Company”) is offering (the “Exchange Offer”) to issue $1,000
in principal amount at maturity of its Zero Coupon Senior Convertible Notes
due
2032 (Cusip No. 12489VACO) (the “New Notes”) plus an exchange fee of $0.60 per
$1,000 principal amount at maturity of New Notes in exchange for each $1,000
in
principal amount at maturity of its Liquid Yield Option Notes due 2032 (Zero
Coupon - Senior) (Cusip Nos. 12489VAB2; 12489VAA4) (the “Old Notes”). The
complete terms of the Exchange Offer are contained in the Exchange Circular,
dated March 20, 2007 (the “Exchange Circular”) and related documents
incorporated by reference herein as Exhibit 99.T3E(1) and
99.T3E(2).
Because
the New Notes and exchange fee are proposed to be offered by the Company to
its
existing security holders exclusively and solely for outstanding securities
of
the Company, the transaction is exempt from registration under the Securities
Act of 1933, as amended (the “Securities Act”), pursuant to the provisions of
Section 3(a)(9) thereof. No sales of securities of the same class as the New
Notes have been or are to be made by the Company by or through an underwriter
at
or about the same time as the Exchange Offer for which the exemption is claimed.
No consideration has been, or is to be given, directly or indirectly, to any
person in connection with the Exchange Offer, except for the customary payments
to be made in respect of preparation, printing, and mailing of the Offering
Circular and related documents and the engagement of Global Bondholder Services
Corporation as Exchange Agent and Information Agent and Wachovia Securities
LLC
as financial advisor to the Company. No holder of the outstanding securities
has
made or will be requested to make any cash payment to the Company in connection
with the Exchange Offer.
AFFILIATIONS
3.
Affiliates.
The
following is a list of the Company’s affiliates (other than it directors and
executive officers who are listed in Item 4 below) as of the date of this Form
T-3. The Company, directly or indirectly, owns 100% of the voting stock of
each
of the following entities:
Cracker
Barrel Old Country Store, Inc.
CBOCS
Distribution, Inc.
CBOCS
Partner I, LLC
CBOCS
Partner II, LLC
CBOCS
Pennsylvania, LLC
CBOCS
Properties, Inc.
CBOCS
Supply, Inc.
Gun
Barrel Road Logan’s, Inc.
CBOCS
West, Inc.
CB
Music
LLC
Rocking
Chair, Inc.
CBOCS
Texas Limited Partnership
2
MANAGEMENT
AND CONTROL
4.
Directors and Executive Officers.
The
names
of the Company’s directors and executive officers are set forth below. The
mailing address of each of the directors and executive officers is 305 Hartmann
Drive, P.O. Box 787 Lebanon, Tennessee 37088-0787. The title of each of the
executive officers set forth below refers to such executive officer’s position
with the Company, unless other specified below.
|
Name
|
Position
|
|
Michael
A. Woodhouse
|
Chairman,
President and Chief Executive Officer and Director
|
|
Lawrence
E. White
|
Senior
Vice President, Finance and Chief Financial Officer
|
|
N.
B. Forrest Shoaf
|
Senior
Vice President, General Counsel and Corporate Secretary
|
|
Edward
A. Greene
|
Senior
Vice President, Strategic Initiatives
|
|
Simon
Turner
|
Senior
Vice President, Marketing and Innovation and Chief Marketing
Officer
|
|
Diana
S. Wynne
|
Senior
Vice President, Corporate Affairs
|
|
Patrick
A. Scruggs
|
Vice
President, Accounting and Tax and Chief Accounting
Officer
|
|
James
D. Carreker
|
Director
|
|
Robert
V. Dale
|
Director
|
|
Richard
J. Dobkin
|
Director
|
|
Robert
C. Hilton
|
Director
|
|
Charles
E. Jones, Jr.
|
Director
|
|
B.
F. “Jack” Lowery
|
Director
|
|
Martha
M. Mitchell
|
Director
|
|
Erik
Vonk
|
Director
|
|
Andrea
M. Weiss
|
Director
|
|
Jimmie
D. White
|
Director
|
5.
Principal Owners of Voting Securities.
As
of
February 23, 2007, there was no person known to the Company that owned 10
percent or more of the Company’s voting securities.
UNDERWRITERS
6.
Underwriters.
(a) No
person, within the three years prior to the date of filing of this application
on Form T-3, has acted as an underwriter of any of the Company’s securities that
were outstanding on the date of filing this application.
(b) There
is
no proposed principal underwriter of the New Notes proposed to be offered in
the
Exchange Offer.
3
CAPITAL
SECURITIES
7.
Capitalization.
|
(a)
|
The
authorized and outstanding capital stock and debt securities of the
Company, as of February 23, 2007, consisted of the
following:
|
|
TITLE
OF CLASS
|
AMOUNT
AUTHORIZED
|
AMOUNT
OUTSTANDING
|
|
Common
Stock, par value $0.01 per share
|
400,000,000
shares
|
25,186,108
Shares
|
|
Preferred
Stock, par value $0.01 per share
|
100,000,000
shares
|
0
|
|
Liquid
Yield Option™ Notes due 2032 (Zero Coupon - Senior)
|
$422,050,000/1/
|
$422,050,000/1/
|
|
Zero
Coupon Senior Convertible Notes due 2032
|
$422,050,000/1/
|
$0
|
(1)
Reflects the aggregate principal amount at maturity
|
(b)
|
Each
outstanding share of Common Stock, par value $0.01 per share is entitled
to one vote on all matters submitted to a vote of stockholders. There
are
no cumulative voting rights.
|
INDENTURE
SECURITIES
8.
Analysis of Indenture Provisions.
The
New
Notes will be issued under an indenture (the “New Indenture”) to be dated as of
the first issuance of New Notes pursuant to the Exchange Offer and entered
into
between the Company, the Company’s subsidiaries, as Guarantors, and Regions
Bank, an Alabama banking corporation, as trustee (the “Trustee”). The following
analysis is not a complete description of the New Indenture provisions discussed
and is qualified in its entirety by reference to the terms of the New Indenture,
the form of which is attached as Exhibit 99.T3C hereto and incorporated by
reference herein. The Company has not entered into the New Indenture as of
the
date of filing this application on form T-3, and the terms of the New Indenture
are subject to change prior to its execution. Capitalized
terms used below but not defined herein have the meanings assigned to them
in
the New Indenture.
Events
of Default; Withholding of Notice
The
following are events of default for the New Notes:
|
(1)
|
the
Company defaults in payment of any contingent interest or of interest
which becomes payable after the New Notes have been converted to
semiannual coupon notes following the occurrence of a Tax Event,
which
default, in either case, continues for 30
days;
|
|
(2)
|
the
Company defaults in the payment of the Principal Amount at Maturity
(or,
if the New Notes have been converted to semiannual coupon notes following
a Tax Event pursuant to Article 10, the Restated Principal Amount),
Issue
Price plus accrued Original Issue Discount, Redemption Price or Purchase
Price of any New Note when the same becomes due and payable at its
Stated
Maturity, upon redemption, upon declaration, when due for purchase
by the
Company or otherwise;
|
4
|
(3)
|
the
Company or any Guarantor fails to comply with any of the other agreements
in the New Notes, any Guarantee or the New Indenture (other than
those
referred to in clauses (1) and (2) above) and such failure continues
for
60 days after receipt by the Company of a Notice of
Default;
|
|
(4)
|
(a)
failure of the Company to make any payment by the end of any applicable
grace period after maturity of Debt in an amount (taken together
with
amounts in item (b) below) in excess of $10,000,000 and continuance
of
such failure, or (b) an acceleration of Debt has occurred in an amount
(taken together with amounts in item (a) above) in excess of $10,000,000
because of a default with respect to such Debt without such Debt
having
been discharged or such acceleration having been cured, waived, rescinded
or annulled, in the case of items (a) or (b) above, for a period
of 30
days after receipt by the Company of a Notice of Default; provided,
however, that if any such failure or acceleration referred to in
items (a)
or (b) above shall cease or be cured, waived, rescinded or annulled,
then
the Event of Default by reason thereof shall be deemed not to have
occurred;
|
|
(5)
|
any
Guarantee ceases to be in full force and effect or is declared null
and
void or any Guarantor denies that it has any further liability under
any
Guarantee, or gives notice to such effect (other than by reason of
the
termination of the New Indenture or the release of any such Guarantee
in
accordance with the New Indenture) and such condition shall have
continued
for a period of 30 days after written notice of such failure requiring
the
Guarantor and the Company to remedy the same shall have been given
(x) to
the Company by the Trustee or (y) to the Company and the Trustee
by the
holders of 25% in aggregate principal amount of the New Notes then
outstanding; or
|
|
(6)
|
the
Company or any Significant Subsidiary pursuant to or under or within
the
meaning of any Bankruptcy Law:
|
|
(A)
|
commences
a voluntary case or proceeding;
|
|
(B)
|
consents
to the entry of an order for relief against it in an involuntary
case or
proceeding or the commencement of any case against
it;
|
|
(C)
|
consents
to the appointment of a Custodian of it or for any substantial part
of its
property;
|
|
(D)
|
makes
a general assignment for the benefit of its
creditors;
|
|
(E)
|
files
a petition in bankruptcy or answer or consent seeking reorganization
or
relief; or
|
|
(F)
|
consents
to the filing of such petition or the appointment of or taking possession
by a Custodian; or
|
|
(7)
|
a
court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
|
|
(A)
|
is
for relief against the Company or any Significant Subsidiary in an
involuntary case or proceeding, or adjudicates the Company or any
Significant Subsidiary insolvent or
bankrupt;
|
5
|
(B)
|
appoints
a Custodian of the Company or any Significant Subsidiary or for any
substantial part of its property;
or
|
|
(C)
|
orders
the winding up or liquidation of the Company or any Significant
Subsidiary;
|
and
the
order or decree remains unstayed and in effect for 60 days.
A
Default
under clause (3) or clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount at Maturity of the New Notes at the time outstanding notify
the
Company and the Trustee, of the Default and the Company does not cure such
Default (or such Default is not waived) within the time specified in clause
(3)
or clause (4) above after actual receipt of such notice. Any such notice must
specify the Default, demand that it be remedied and state that such notice
is a
“Notice of Default.”
The
Company is required to deliver to the Trustee, within 30 days after it becomes
aware of the occurrence thereof, written notice of any event which with the
giving of notice or the lapse of time, or both, would become an Event of Default
under clause (3) or clause (4) above, its status and what action the Company
is
taking or proposes to take with respect thereto.
If
an
Event of Default (other than an Event of Default specified in clauses (6) or
(7)
above) occurs and is continuing, the Trustee by written Notice to the Company,
or the Holders of at least 25% in aggregate Principal Amount at Maturity of
the
New Notes at the time outstanding by notice to the Company and the Trustee,
may
declare the Issue Price plus accrued Original Issue Discount through the date
of
declaration, and any accrued and unpaid interest (including contingent interest)
through the date of such declaration, on all the New Notes to be immediately
due
and payable. Upon such a declaration, such Issue Price plus accrued Original
Issue Discount, and such accrued and unpaid interest (including contingent
interest), if any, shall be due and payable immediately. If an Event of Default
specified in Section clauses (6) or (7) above occurs in respect of the Company
and is continuing, the Issue Price plus accrued Original Issue Discount plus
accrued and unpaid interest (including contingent interest), if any, on all
the
New Notes shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any holders of New Notes.
The Holders of a majority in aggregate Principal Amount at Maturity of the
New
Notes at the time outstanding, by notice to the Trustee (and without notice
to
any other holder of New Notes) may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the
Issue Price plus accrued Original Issue Discount plus accrued and unpaid
interest that have become due solely as a result of acceleration and if all
amounts due to the Trustee under the New Indenture have been paid. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
If
a
Default occurs and if it is known to the Trustee, the Trustee shall give to
each
holder of New Notes notice of the Default within 90 days after it occurs unless
such Default shall have been cured or waived before the giving of such notice.
Except in the case of a Default described in Section clauses (1) or (2) above,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in
the interests of holders of New Notes.
Holders
of a majority in aggregate Principal Amount at Maturity of the New Notes at
the
time outstanding, by notice to the Trustee (and without notice to any other
holder of New Notes), may waive an existing Default and its consequences except
(i) payment defaults, (ii) a Default in respect of a provision under the New
Indenture that cannot be amended without the consent of each holder of
New
6
Notes
affected or (iii) a Default which constitutes a failure to convert any Security
in accordance with the conversion provisions of the New Indenture.
The
Holders of a majority in aggregate Principal Amount at Maturity of the new
Notes
at the time outstanding may direct the time, method and place of conducting
any
proceeding for any remedy available to the Trustee or of exercising any trust
or
power conferred on the Trustee. The Trustee, however, may refuse to follow
any
direction that conflicts with law or the New Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other Holders
of
New Notes or would involve the Trustee in personal liability unless the Trustee
is offered indemnity satisfactory to it.
A
Holder
of New Notes may not pursue any remedy with respect to the New Indenture or
the
New Notes unless:
|
(1)
|
the
Holder gives to the Trustee written notice stating that an Event
of
Default is continuing;
|
|
(2)
|
the
Holders of at least 25% in aggregate Principal Amount at Maturity
of the
New Notes at the time outstanding make a written request to the Trustee
to
pursue the remedy;
|
|
(3)
|
such
Holder or Holders offer to the Trustee security or indemnity satisfactory
to the Trustee against any loss, liability or
expense;
|
|
(4)
|
the
Trustee does not comply with the request within 60 days after receipt
of
such notice, request and offer of security or indemnity;
and
|
|
(5)
|
the
Holders of a majority in aggregate Principal Amount at Maturity of
the New
Notes at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day
period.
|
|
Authentication
and Delivery
|
The
New
Notes shall be executed on behalf of the Company by any Officer. The signature
of the Officer on the New Notes may be manual or facsimile. Upon proper delivery
of the New Notes to the Trustee for authentication, the Trustee shall
authenticate and deliver such New Notes. Because the New Notes are being issued
in exchange for the Old Notes, there will be no proceeds to the Company
resulting from issuance of the New Notes.
|
Release
of Property Subject to
Lien
|
Neither
the Old Notes nor the New Notes are secured by any lien on property.
|
Satisfaction
and Discharge
|
The
New
Indenture shall cease to be of further force and effect when (i) the Company
delivers to the Trustee all outstanding New Notes (other than New Notes being
replaced) for cancellation or (ii) all outstanding New Notes have become due
and
payable and the Company or any Guarantor irrevocably deposits with the Trustee,
the Paying Agent (if the Paying Agent is not the Company or any of its
Affiliates) or the Conversion Agent, cash or Common Stock sufficient to pay
all
amounts due and owing on all outstanding New Notes (other than New Notes being
replaced), and if in either case the Company pays all other sums payable
hereunder by the Company, then the New Indenture shall, with the exception
of
certain responsibilities owed to the Trustee, cease to be of further effect.
7
Evidence
of Compliance with Conditions and Covenants
The
Company is required to deliver to the Trustee within 120 days after the end
of
each of the Company’s fiscal years 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
the New Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
The
Company also is required to deliver to the Trustee written notice of any event
which with the giving of notice or the lapse of time, or both, would become
an
Event of Default, within 30 days after it becomes aware of the occurrence of
any
event which with the giving of notice or the lapse of time, or both, would
become an Event of Default.
9.
Other Obligors.
The
New
Notes are issued by the Company and guaranteed by each of the following
subsidiaries:
|
Cracker
Barrel Old Country Store, Inc.
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
CBOCS
Distribution, Inc.
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
CBOCS
Partner I, LLC
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
CBOCS
Partner II, LLC
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
CBOCS
Pennsylvania, LLC
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
CBOCS
Properties, Inc.
|
45525
North I-94 Service Road, Belleville, Michigan
48111
|
|
CBOCS
Supply, Inc.
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
Gun
Barrel Road Logan’s, Inc.
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
CBOCS
West, Inc.
|
3993
Howard Hughes Parkway • Suite 250 • Las Vegas, NV 89169
|
|
CB
Music LLC
|
305
Hartmann Drive, Lebanon, TN 37087
|
|
Rocking
Chair, Inc.
|
3993
Howard Hughes Parkway • Suite 250 • Las Vegas, NV 89169
|
|
CBOCS
Texas Limited Partnership
|
305
Hartmann Drive, Lebanon, TN
37087
|
8
CONTENTS
OF APPLICATION FOR QUALIFICATION
This
application for qualification comprises:
|
(a)
|
Pages
numbered 1 to 10, consecutively.
|
|
(b)
|
The
statement of eligibility and qualification of the Trustee under the
Indenture to be qualified (on Form T-1).
|
|
(c)
|
The
following exhibits, in addition to those filed as part of the statement
of
eligibility and qualification of the trustee:
|
Exhibit
No. Description
99.T3A Charter
(incorporated
by reference to Appendix A-1 to the proxy statement/prospectus contained in
the
Company's Registration Statement on Form S-
4/A
under the Securities Act of 1933
(“Securities Act”) (File No. 333-62469) filed with the Commission on October 9,
1998).
99.T3B Bylaws
(incorporated
by reference to Appendix A-2 to the proxy statement/prospectus contained in
the
Company's Registration Statement on Form S-
4/A
under the Securities Act (File No.
333-62469) filed with the Commission on October 9, 1998).
99.T3C Form
of
Indenture, to be dated as of April 17, 2007, among the Company, the Guarantors
(as defined therein) and Regions Bank, an Alabama banking
corporation,
as trustee, relating to
the Company’s zero-coupon senior convertible notes due 2032.
99.T3D Not
applicable.
99.T3E(1) Exchange
Circular, dated as of March 20, 2007 (incorporated by reference to Exhibit
(a)(1)(A) to the Company’s Tender Offer Statement on Schedule
TO
filed with the
Commission on March 20, 2007).
99.T3E(2) Letter
of
Transmittal (incorporated by reference to Exhibit (a)(1)(B) to the Company’s
Tender Offer Statement on Schedule TO filed with the
Commission
on March
20, 2007).
99.T3F Cross-Reference
Sheet (included in the Form of Indenture filed as Exhibit T3C
hereto).
99.T3G Form
T-1
qualifying Regions Bank, an Alabama banking association, as Trustee under the
Indenture to be qualified.
9
SIGNATURE
Pursuant
to the requirements of the Trust Indenture Act of 1939, as amended, CBRL Group,
Inc., a corporation organized and existing under the laws of the State of
Tennessee, has duly caused this application to be signed on its behalf by the
undersigned, thereunto duly authorized, and its seal to be hereunto affixed
and
attested, all in the City of Lebanon, and State of Tennessee, on the 20th day
of
March, 2007.
| CBRL GROUP, INC. | ||||
|
(Seal)
|
||||
| By: | /s/ N. B. Forrest Shoaf | |||
| Name: | N.B. Forrest Shoaf | |||
| Title: | Senior Vice President, Secretary and | |||
| General Counsel | ||||
| By: | /s/ Lawrence E. White | |||
|
(Attest)
|
Name: | Lawrence E. White | ||
| Title: | Senior Vice President - Finance and | |||
| Chief Financial Officer | ||||
10
__________________________________________________________
CBRL
GROUP, INC.
and
THE
SUBSIDIARY GUARANTORS PARTIES HERETO
and
REGIONS
BANK, an Alabama banking corporation
TRUSTEE
Zero-Coupon
- Senior Convertible Notes
due
2032
__________________________________________________________
INDENTURE
Dated
as
of _____________, 2007
__________________________________________________________
CROSS
REFERENCE TABLE*
|
IA
Section.........................................................................................................................
|
Indenture
Section
|
|
310(a)(1)...........................................................................................................................
|
7.10
|
|
(a)(2)..........................................................................................................................
|
7.10
|
|
(a)(3)..........................................................................................................................
|
N.A.
|
|
(a)(4)..........................................................................................................................
|
N.A.
|
|
(b)..............................................................................................................................
|
7.08;
7.10
|
|
(c)..............................................................................................................................
|
N.A.
|
|
311(a)...............................................................................................................................
|
7.11
|
|
(b)..............................................................................................................................
|
7.11
|
|
(c)..............................................................................................................................
|
N.A.
|
|
312(a)...............................................................................................................................
|
2.05
|
|
(b)..............................................................................................................................
|
14.03
|
|
(c)..............................................................................................................................
|
14.03
|
|
313(a)...............................................................................................................................
|
7.06
|
|
(b)(1)..........................................................................................................................
|
N.A.
|
|
(b)(2)..........................................................................................................................
|
7.06
|
|
(c)..............................................................................................................................
|
14.02
|
|
(d)..............................................................................................................................
|
7.06
|
|
314(a)...............................................................................................................................
|
4.02;
4.03; 14.02
|
|
(b)..............................................................................................................................
|
N.A.
|
|
(c)(1)..........................................................................................................................
|
14.04
|
|
(c)(2)..........................................................................................................................
|
14.04
|
|
(c)(3)..........................................................................................................................
|
N.A.
|
|
(d)..............................................................................................................................
|
N.A.
|
|
(e)..............................................................................................................................
|
14.05
|
|
(f)...............................................................................................................................
|
N.A.
|
|
315(a)...............................................................................................................................
|
7.01
|
|
(b)..............................................................................................................................
|
7.05;
14.02
|
|
(c)..............................................................................................................................
|
7.01
|
|
(d)..............................................................................................................................
|
7.01
|
|
(e)..............................................................................................................................
|
6.11
|
|
316(a)
(last
sentence)........................................................................................................
|
2.08
|
|
(a)(1)(A)....................................................................................................................
|
6.05
|
|
(a)(1)(B)....................................................................................................................
|
6.04
|
|
(a)(2)..........................................................................................................................
|
N.A.
|
|
(b)..............................................................................................................................
|
6.07
|
|
317(a)(1)..........................................................................................................................
|
6.08
|
|
(a)(2)..........................................................................................................................
|
6.09
|
|
(b)..............................................................................................................................
|
2.04
|
|
318(a)...............................................................................................................................
|
14.01
|
N.A.
means Not Applicable.
* Note: This
Cross Reference Table shall
not, for any purpose, be deemed to be part of the Indenture.
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
SECTION
1.01
Definitions................................................................................................................................................................................................
|
1
|
|
SECTION
1.02 Other
Definitions.......................................................................................................................................................................................
|
6
|
|
SECTION
1.03 Incorporation by Reference of Trust Indenture
Act.....................................................................................................................................
|
7
|
|
SECTION
1.04 Rules of
Construction................................................................................................................................................................................
|
7
|
|
SECTION
1.05 Acts of
Holders........................................................................................................................................................................................
|
8
|
ARTICLE
2
THE
SECURITIES
|
SECTION
2.01 Form and
Dating.......................................................................................................................................................................................
|
9
|
|
SECTION
2.02 Execution and
Authentication.....................................................................................................................................................................
|
10
|
|
SECTION
2.03 Registrar, Paying Agent, Conversion Agent and Bid Solicitation
Agent.........................................................................................................
|
11
|
|
SECTION
2.04 Paying Agent to Hold Money and Securities in
Trust...................................................................................................................................
|
11
|
|
SECTION
2.05 Securityholder
Lists...................................................................................................................................................................................
|
12
|
|
SECTION
2.06 Transfer and
Exchange.............................................................................................................................................................................
|
12
|
|
SECTION
2.07 Replacement
Securities.............................................................................................................................................................................
|
13
|
|
SECTION
2.08 Outstanding Securities; Determinations of Holders’
Action..........................................................................................................................
|
14
|
|
SECTION
2.09 Temporary
Securities................................................................................................................................................................................
|
15
|
|
SECTION
2.10
Cancellation..............................................................................................................................................................................................
|
15
|
|
SECTION
2.11 Persons Deemed
Owners..........................................................................................................................................................................
|
16
|
|
SECTION
2.12 Global
Securities.......................................................................................................................................................................................
|
16
|
|
SECTION
2.13 CUSIP
Numbers.......................................................................................................................................................................................
|
20
|
ARTICLE
3
REDEMPTION
AND PURCHASES
|
SECTION
3.01 Right to Redeem; Notices to
Trustee..........................................................................................................................................................
|
20
|
|
SECTION
3.02 Selection of Securities to Be
Redeemed......................................................................................................................................................
|
20
|
|
SECTION
3.03 Notice of
Redemption................................................................................................................................................................................
|
21
|
|
SECTION
3.04 Effect of Notice of
Redemption.................................................................................................................................................................
|
21
|
|
SECTION
3.05 Deposit of Redemption
Price.....................................................................................................................................................................
|
22
|
|
SECTION
3.06 Securities Redeemed in
Part......................................................................................................................................................................
|
22
|
|
SECTION
3.07 Conversion Arrangement on Call for
Redemption........................................................................................................................................
|
22
|
|
SECTION
3.08 Purchase of Securities at Option of the
Holder............................................................................................................................................
|
23
|
|
SECTION
3.09 [Intentionally
Omitted]...............................................................................................................................................................................
|
25
|
* Note: This
Cross Reference Table shall
not, for any purpose, be deemed to be part of the Indenture.
i
|
SECTION
3.10 Effect of Purchase
Notice.........................................................................................................................................................................
|
25
|
|
SECTION
3.11 Deposit of Purchase
Price.........................................................................................................................................................................
|
26
|
|
SECTION
3.12 Securities Purchased in
Part......................................................................................................................................................................
|
26
|
|
SECTION
3.13 Covenant to Comply With Securities Laws Upon Purchase of
Securities......................................................................................................
|
27
|
|
SECTION
3.14 Repayment to the
Company.......................................................................................................................................................................
|
27
|
ARTICLE
4
COVENANTS
|
SECTION
4.01 Payment of
Securities................................................................................................................................................................................
|
27
|
|
SECTION
4.02 SEC and Other
Reports.............................................................................................................................................................................
|
27
|
|
SECTION
4.03 Compliance
Certificate..............................................................................................................................................................................
|
28
|
|
SECTION
4.04 Further Instruments and
Acts.....................................................................................................................................................................
|
28
|
|
SECTION
4.05 Maintenance of Office or
Agency..............................................................................................................................................................
|
28
|
|
SECTION
4.06 Delivery of Certain
Information..............................................................................................................................................................
|
28
|
|
SECTION
4.07 Calculation of Original Issue
Discount........................................................................................................................................................
|
29
|
|
SECTION
4.08 Limitation on Guarantees of Indebtedness by Domestic
Subsidiaries.............................................................................................................
|
29
|
ARTICLE
5
SUCCESSOR
CORPORATION
| SECTION 5.01 When Company May Merge or Transfer Assets...................................................................................................................................... |
30
|
ARTICLE
6
DEFAULTS
AND REMEDIES
|
SECTION
6.01 Events of Default...................................................................................................................................................................................
|
31
|
|
SECTION
6.02 Acceleration..........................................................................................................................................................................................
|
33
|
|
SECTION
6.03 Other Remedies.....................................................................................................................................................................................
|
33
|
|
SECTION
6.04 Waiver of Past Defaults.........................................................................................................................................................................
|
33
|
|
SECTION
6.05 Control by Majority.................................................................................................................................................................................
|
34
|
|
SECTION
6.06 Limitation on Suits..................................................................................................................................................................................
|
34
|
|
SECTION
6.07 Rights of Holders to Receive Payment.....................................................................................................................................................
|
34
|
|
SECTION
6.08 Collection Suit by Trustee........................................................................................................................................................................
|
35
|
|
SECTION
6.09 Trustee May File Proofs of Claim............................................................................................................................................................
|
35
|
|
SECTION
6.10 Priorities................................................................................................................................................................................................
|
35
|
|
SECTION
6.11 Undertaking for Costs.............................................................................................................................................................................
|
36
|
|
SECTION
6.12 Waiver of Stay, Extension or Usury Laws................................................................................................................................................
|
36
|
ARTICLE
7
TRUSTEE
|
SECTION
7.01 Duties of Trustee......................................................................................................................................................................................
|
36
|
|
SECTION
7.02 Rights of Trustee......................................................................................................................................................................................
|
38
|
|
SECTION
7.03 Individual Rights of Trustee.......................................................................................................................................................................
|
39
|
|
SECTION
7.04 Trustee’s Disclaimer.................................................................................................................................................................................
|
39
|
|
SECTION
7.05 Notice of Defaults.....................................................................................................................................................................................
|
39
|
|
SECTION
7.06 Reports by Trustee to Holders...................................................................................................................................................................
|
39
|
ii
|
SECTION
7.07 Compensation and Indemnity.....................................................................................................................................................................
|
40
|
|
SECTION
7.08 Replacement of Trustee............................................................................................................................................................................
|
41
|
|
SECTION
7.09 Successor Trustee by Merger....................................................................................................................................................................
|
41
|
|
SECTION
7.10 Eligibility; Disqualification..........................................................................................................................................................................
|
41
|
|
SECTION
7.11 Preferential Collection of Claims Against Company....................................................................................................................................
|
42
|
ARTICLE
8
DISCHARGE
OF INDENTURE
| SECTION 8.01 Discharge of Liability on Securities.......................................................................................................................................................... |
42
|
| SECTION 8.02 Repayment to the Company.................................................................................................................................................................... |
42
|
ARTICLE
9
AMENDMENTS
|
SECTION
9.01 Without Consent of Holders....................................................................................................................................................................
|
42
|
|
SECTION
9.02 With Consent of Holders.........................................................................................................................................................................
|
43
|
|
SECTION
9.03 Compliance with Trust Indenture Act.......................................................................................................................................................
|
44
|
|
SECTION
9.04 Revocation and Effect of Consents, Waivers and Actions.........................................................................................................................
|
44
|
|
SECTION
9.05 Notation on or Exchange of Securities......................................................................................................................................................
|
44
|
|
SECTION
9.06 Trustee to Sign Supplemental Indentures..................................................................................................................................................
|
44
|
|
SECTION
9.07 Effect of Supplemental Indentures...........................................................................................................................................................
|
44
|
ARTICLE
10
SPECIAL
TAX EVENT CONVERSION
|
SECTION
10.01 Optional Conversion to Semiannual Coupon Note Upon Tax Event..........................................................................................................
|
45
|
ARTICLE
11
CONVERSION
|
SECTION
11.01 Conversion Privilege................................................................................................................................................................................
|
45
|
|
SECTION
11.02 Conversion Procedure.............................................................................................................................................................................
|
47
|
|
SECTION
11.03 Fractional Shares.....................................................................................................................................................................................
|
48
|
|
SECTION
11.04 Taxes on Conversion...............................................................................................................................................................................
|
48
|
|
SECTION
11.05 Company to Provide Stock.......................................................................................................................................................................
|
49
|
|
SECTION
11.06 Adjustment for Change In Capital Stock...................................................................................................................................................
|
49
|
|
SECTION
11.07 Adjustment for Rights Issue.....................................................................................................................................................................
|
50
|
|
SECTION
11.08 Adjustment for Other Distributions...........................................................................................................................................................
|
51
|
|
SECTION
11.09 When Adjustment May Be Deferred........................................................................................................................................................
|
54
|
|
SECTION
11.10 When No Adjustment Required................................................................................................................................................................
|
54
|
|
SECTION
11.11 Notice of Adjustment...............................................................................................................................................................................
|
54
|
|
SECTION
11.12 Voluntary Increase..................................................................................................................................................................................
|
54
|
|
SECTION
11.13 Notice of Certain Transactions.................................................................................................................................................................
|
54
|
|
SECTION
11.14 Reorganization of Company; Special Distributions......................................................................................................................................
|
55
|
|
SECTION
11.15 Company Determination Final..................................................................................................................................................................
|
56
|
|
SECTION
11.16 Trustee’s Adjustment Disclaimer..............................................................................................................................................................
|
56
|
|
SECTION
11.17 Simultaneous Adjustments........................................................................................................................................................................
|
56
|
iii
|
SECTION
11.18 Successive Adjustments..........................................................................................................................................................................
|
56
|
|
SECTION
11.19 Rights Issued in Respect of Common Stock Issued Upon Conversion.........................................................................................................
|
56
|
ARTICLE
12
PAYMENT
OF INTEREST
|
SECTION
12.01 Interest
Payments...................................................................................................................................................................................
|
57
|
| SECTION 12.02 Defaulted Interest................................................................................................................................................................................. |
57
|
| SECTION 12.03 Interest Rights Preserved...................................................................................................................................................................... |
58
|
ARTICLE
13
GUARANTEES
|
SECTION
13.01 Guarantees.............................................................................................................................................................................................
|
58
|
|
SECTION
13.02 Severability.............................................................................................................................................................................................
|
60
|
|
SECTION
13.03 Future Subsidiaries..................................................................................................................................................................................
|
60
|
|
SECTION
13.04 Priority of Guarantees..............................................................................................................................................................................
|
60
|
|
SECTION
13.05 Limitation of Guarantors’ Liability.............................................................................................................................................................
|
60
|
|
SECTION
13.06 Subrogation.............................................................................................................................................................................................
|
61
|
|
SECTION
13.07 Reinstatement.........................................................................................................................................................................................
|
61
|
|
SECTION
13.08 Release of the Guarantor.........................................................................................................................................................................
|
61
|
|
SECTION
13.09 Benefits Acknowledged...........................................................................................................................................................................
|
61
|
ARTICLE
14
MISCELLANEOUS
|
SECTION
14.01 Trust Indenture Act Controls...................................................................................................................................................................
|
62
|
|
SECTION
14.02 Notices...........................................................................................................................................................................................,.......
|
62
|
|
SECTION
14.03 Communication by Holders with Other Holders.........................................................................................................................................
|
63
|
|
SECTION
14.04 Certificate and Opinion as to Conditions Precedent....................................................................................................................................
|
63
|
|
SECTION
14.05 Statements Required in Certificate or Opinion...........................................................................................................................................
|
63
|
|
SECTION
14.06 Separability Clause..................................................................................................................................................................................
|
64
|
|
SECTION
14.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar..............................................................................................................
|
64
|
|
SECTION
14.08 Calculations............................................................................................................................................................................................
|
64
|
|
SECTION
14.09 Legal Holidays........................................................................................................................................................................................
|
64
|
|
SECTION
14.10 GOVERNING LAW...............................................................................................................................................................................
|
64
|
|
SECTION
14.11 No Recourse Against Others...................................................................................................................................................................
|
64
|
|
SECTION
14.12 Successors..............................................................................................................................................................................................
|
64
|
|
SECTION
14.13 Multiple Originals....................................................................................................................................................................................
|
64
|
iv
INDENTURE
dated as of ___________________, 2007 among CBRL GROUP, INC., a Tennessee
corporation (“Company”),
and
the guarantors from time to time parties hereto and described below (each a
“Guarantor”
and
collectively, the “Guarantors”)
and
REGIONS BANK, an Alabama banking corporation (“Trustee”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the creation of an issue of Zero-Coupon Senior
Convertible Notes due 2032 (the “Securities”)
having
the terms, tenor, amount and other provisions hereinafter set forth, and, to
provide therefor, the Company has duly authorized the execution and delivery
of
this Indenture.
All
things necessary to make the Securities, when the Securities are duly executed
by the Company and the Guarantors and authenticated and delivered hereunder
and
duly issued by the Company and the Guarantors, the valid obligations of the
Company and the Guarantors, and to make this Indenture a valid and binding
agreement of the Company and the Guarantors, in accordance with their and its
terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
1
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01 Definitions.
“Affiliate”
of
any
specified person means any other person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
person. For the purposes of this definition, “control”
when
used with respect to any specified person means the power to direct or cause
the
direction of the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling”
and
“controlled”
have
meanings correlative to the foregoing.
“Applicable
Procedures”
means,
with respect to any transfer or transaction involving a Global Security or
beneficial interest therein, the rules and procedures of the Depositary for
such
Security, in each case to the extent applicable to such transaction and as
in
effect from time to time.
“Board
of Directors”
means
either the board of directors of the Company or any duly authorized committee
of
such board.
“Business
Day”
means
each day of the year other than a Saturday or a Sunday or other day on which
banking institutions in The City of New York are required or authorized to
close.
“Capital
Stock”
for
any
corporation means any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) stock or other equity issued by that corporation.
“Certificated
Securities”
means
any of the Securities that are in the form of the Securities attached hereto
as
Exhibit A-3.
“Common
Stock”
shall
mean the shares of Common Stock, $0.01 par value, of the Company as it exists
on
the date of this Indenture or any other shares of Capital Stock of the Company
into which the Common Stock shall be reclassified or changed.
“Company”
means
the party named as the “Company”
in
the
first paragraph of this Indenture until a successor replaces it pursuant to
the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
“Company
Request”
or
“Company
Order”
means
a
written request or order signed in the name of the Company by any two
Officers.
“Corporate
Trust Office”
means
the principal office of the Trustee at which at any time its corporate trust
business shall be administered, which office at the date hereof is located
at
315 Deaderick Street, 2nd
Floor,
Nashville, TN 37237, Attention: Corporate Trust Office, or such other address
as
the Trustee may designate from time to time by notice to the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the
Company).
“Debt”
means
with respect to the Company at any date, without duplication, obligations (other
than nonrecourse obligations) for borrowed money or evidenced by bonds,
debentures, notes or similar instruments.
“Default”
means
any event which is, or after notice or passage of time or both would be, an
Event of Default.
“domestic
Subsidiary”
means
any Subsidiary that was formed under the laws of the United States or any state
or dependency thereof or the district of Columbia.
“Global
Securities”
means
any of the Securities that are in the form of the Securities attached hereto
as
Exhibit A-1.
“guarantee”
means,
as applied to any obligation, (i) a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner, of any part or all of such obligation and
(ii) an agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to assure in any way the payment or performance (or payment
of damages in the event of non-performance) of all or any
2
“Guarantee”
means
any guarantee of the Securities by any domestic Subsidiary in accordance with
the provisions of Article 13.
“Guarantors”
means
(i) each domestic Subsidiary listed as a signatory to this Indenture and (ii)
each Person who becomes a Guarantor pursuant to Article 13 and/or Section 4.08
of this Indenture.
“Holder”
or
“Securityholder”
means
a
person in whose name a Security is registered on the Registrar’s
books.
“Indenture”
means
this Indenture, as amended or supplemented from time to time in accordance
with
the terms hereof, including the provisions of the TIA that are deemed to be
a
part hereof.
“Institutional
Accredited Investor Security”
means
a
Security in the form of the Security attached hereto as Exhibit A-1,
representing Securities sold to Institutional Accredited Investors.
“Issue
Date”
of
any
Security means the date on which the Security was originally issued or deemed
issued as set forth on the face of the Security.
“Issue
Price”
of
any
Security means, in connection with the original issuance of such Security,
the
initial issue price at which the Security is sold as set forth on the face
of
the Security.
“Officer”
means
the Chairman of the Board, the Vice Chairman, the Chief Executive Officer,
the
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Treasurer or the Secretary or any Assistant Treasurer or
Assistant Secretary of the Company.
“Officers’
Certificate”
means
a
written certificate containing the information specified in Sections 14.04
and
14.05, signed in the name of the Company by any two Officers, and delivered
to
the Trustee. An Officers’ Certificate given pursuant to Section 4.03 shall be
signed by the principal executive financial or accounting Officer of the Company
but need not contain the information specified in Sections 14.04 and
14.05.
“Opinion
of Counsel”
means
a
written opinion containing the information specified in Sections 14.04 and
14.05, from legal counsel who is acceptable to the Trustee. The counsel may
be
an employee of, or counsel to, the Company or the Trustee.
“Original
Issue Discount”
of
any
Security means the difference between the Issue Price and the Principal Amount
at Maturity of the Security as set forth on the face of the
Security.
3
“person”
or
“Person”
means
any individual, corporation, limited liability company, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
“Principal
Amount at Maturity”
of
a
Security means the principal amount at maturity as set forth on the face of
the
Security.
“Redemption
Date”
or
“redemption
date”
means
the date specified for redemption of the Securities in accordance with the
terms
of the Securities and this Indenture.
“Redemption
Price”
or
“redemption
price”
shall
have the meaning set forth in paragraph 6 of the Securities.
“Responsible
Officer”
means,
when used with respect to the Trustee, any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and
familiarity with the particular subject and who, in each case, shall have direct
responsibility for the administration of this Indenture.
“Rule
144”
means
Rule 144 under the Securities Act (or any successor rule having substantially
similar provisions), as it may be amended from time to time.
“Rule 144A”
means
Rule 144A under the Securities Act (or any successor rule having
substantially similar provisions), as it may be amended from time to
time.
“Sale
Price”
of
Capital Stock on any date means the closing per share sale price (or, if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average
ask
prices) on such date as reported in the composite transactions for the principal
United States securities exchange on which the Capital Stock is traded or,
if
the Capital Stock is not listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers Automated Quotation System or by the National Quotation Bureau
Incorporated. In the absence of such quotation, the Company shall be entitled
to
determine the Sale Price on the basis of such quotations as it considers
appropriate.
“SEC”
means
the United States Securities and Exchange Commission.
“Securities”
means
any of the Company’s Zero-Coupon Senior Convertible Notes due 2032, as amended
or supplemented from time to time, issued under this Indenture.
“Securityholder”
or
“Holder”
means
a
person in whose name a Security is registered on the Registrar’s
books.
“Significant
Subsidiary”,
as
such term is defined in Rule 1-02 of Regulation S-X under the Securities Act
of
1933, as amended.
4
“Special
Record Date”
means,
with respect to, the payment of any Defaulted Interest, the date fixed by the
Trustee pursuant to Section 12.02.
“Stated
Maturity”,
when
used with respect to any Security or any installment of semiannual or contingent
interest thereon, means the date specified in such Security as the fixed date
on
which an amount equal to the Principal Amount at Maturity of such Security
or
such installment of semiannual or contingent interest is due and
payable.
“Subsidiary”
means
(i) a corporation, a majority of whose Capital Stock with voting power, under
ordinary circumstances, to elect directors is, at the date of determination,
directly or indirectly owned by the Company, by one or more Subsidiaries of
the
Company or by the Company and one or more Subsidiaries of the Company, (ii)
a
partnership in which the Company or a Subsidiary of the Company holds a majority
interest in the equity capital or profits of such partnership, or (iii) any
other person (other than a corporation or a partnership) in which the Company,
a
Subsidiary of the Company or the Company and one or more Subsidiaries of the
Company, directly or indirectly, at the date of determination, has (x) at least
a majority ownership interest or (y) the power to elect or direct the election
of a majority of the directors or other governing body of such
person.
“Tax
Event”
means
that the Company shall have received an opinion from independent tax counsel
experienced in such matters to the effect that, on or after the Issue Date,
as a
result of (a) any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any
political subdivision or taxing authority thereof or therein or (b) any
amendment to, or change in, an interpretation or application (including through
litigation or a settlement involving the Company) of such laws or regulations
by
any legislative body, court, governmental agency or regulatory authority, in
each case which amendment or change is enacted, promulgated, issued or announced
or which interpretation is issued or announced or which action is taken, on
or
after the Issue Date, there is more than an insubstantial risk that interest
(including Tax Original Issue Discount, as defined in Section 4.07, and
contingent interest, if any) payable on the Securities either (i) would not
be
deductible on a current accrual basis or (ii) would not be deductible under
any
other method, in either case in whole or in part, by the Company (by reason
of
deferral, disallowance, or otherwise) for United States federal income tax
purposes.
“TIA”
means
the Trust Indenture Act of 1939 as in effect on the date of this Indenture,
provided, however, that in the event the TIA is amended after such date, TIA
means, to the extent required by any such amendment, the TIA as so
amended.
“trading
day”
means
a
day during which trading in securities generally occurs on the New York Stock
Exchange or, if the Common Stock is not listed on the New York Stock Exchange,
on the principal other national or regional securities exchange on which the
Common Stock is then listed or, if the Common Stock is not listed on a national
or regional securities exchange, on the National Association of Securities
Dealers Automated Quotation System or, if the Common Stock is not quoted on
the
National Association of Securities Dealers Automated Quotation System, on the
principal other market on which the Common Stock is then traded.
5
“Trustee”
means
the party named as the “Trustee”
in
the
first paragraph of this Indenture until a successor replaces it pursuant to
the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
SECTION
1.02 Other
Definitions.
|
Term
|
Defined
in
Section
|
|
“Accreted
Principal Amount”.....................................................................................................................................
|
11.01
|
|
“Act”........................................................................................................................................................................
|
1.05(a)
|
|
“Agent
Members”.....................................................................................................................................................
|
2.12(f)
|
|
“Average
Sale Price”................................................................................................................................................
|
11.01
|
|
“Bankruptcy
Law".....................................................................................................................................................
|
6.01
|
|
“beneficial
owner”.....................................................................................................................................................
|
3.09(a)
|
|
“Bid
Solicitation Agent”.............................................................................................................................................
|
2.03
|
|
“cash”......................................................................................................................................................................
|
3.08(b)
|
|
“Cash
Settlement Averaging Period”..........................................................................................................................
|
11.01
|
|
“Company
Notice”....................................................................................................................................................
|
3.08(e)
|
|
“Company
Notice Date”............................................................................................................................................
|
3.08(c)
|
|
“Conversion
Agent”...................................................................................................................................................
|
2.03
|
|
“Conversion
Date”....................................................................................................................................................
|
11.02
|
|
“Conversion
Rate”.....................................................................................................................................................
|
11.01
|
|
“Conversion
Value”...................................................................................................................................................
|
11.01
|
|
“Custodian”...............................................................................................................................................................
|
6.01
|
|
“Debentures
Market Price”........................................................................................................................................
|
Exhibit
A-1
|
|
“Defaulted
Interest”..................................................................................................................................................
|
12.02
|
|
“Depositary”.............................................................................................................................................................
|
2.01(a)
|
|
“DTC”......................................................................................................................................................................
|
2.01(a)
|
|
“Event
of Default”.....................................................................................................................................................
|
6.01
|
|
“Exchange
Act”........................................................................................................................................................
|
2.12(f)
|
|
“Ex-Dividend
Date”...................................................................................................................................................
|
11.08(b)
|
|
“Ex-Dividend
Time”..................................................................................................................................................
|
11.01
|
|
“Extraordinary
Cash Dividend”...................................................................................................................................
|
11.08(a)
|
|
“Institutional
Accredited Investors”.............................................................................................................................
|
2.01(b)
|
|
“Interest
Payment Date”............................................................................................................................................
|
10.01
|
|
“Legal
Holiday”.........................................................................................................................................................
|
14.09
|
|
“Legend”..................................................................................................................................................................
|
2.06(f)
|
|
“Measurement
Period”..............................................................................................................................................
|
11.08(a)
|
|
“Net
Shares”............................................................................................................................................................
|
11.01
|
|
“Net
Share Amount”.................................................................................................................................................
|
11.01
|
|
“noncontingent
bond method”.....................................................................................................................................
|
4.07
|
|
“Notice
of Default”...................................................................................................................................................
|
6.01
|
|
“Option
Exercise Date”.............................................................................................................................................
|
10.01
|
|
“Paying
Agent”.........................................................................................................................................................
|
2.03
|
|
“Post-Distribution
Price”...........................................................................................................................................
|
11.08(b)
|
6
|
“Net
Shares”............................................................................................................................................................
|
11.01
|
|
“Principal
Return”.....................................................................................................................................................
|
3.08(a)
|
|
“Purchase
Notice”....................................................................................................................................................
|
3.08(a)
|
|
“Purchase
Price”.....................................................................................................................................................
|
3.08(a)
|
|
“Registrar”...............................................................................................................................................................
|
2.03
|
|
“Regular
Record Date”.............................................................................................................................................
|
10.01
|
|
“Relevant
Cash Dividends”.......................................................................................................................................
|
11.08(a)
|
|
“Restated
Principal Amount”.....................................................................................................................................
|
10.01
|
|
“Rights”...................................................................................................................................................................
|
11.19
|
|
“Rights
Agreement”..................................................................................................................................................
|
11.19
|
|
“Sale
Price”.............................................................................................................................................................
|
11.01
|
|
“Securities
Act”........................................................................................................................................................
|
2.01(b)
|
|
“Special
Record Date”..............................................................................................................................................
|
12.02
|
|
“Tax
Event Date”.....................................................................................................................................................
|
10.01
|
|
“Tax
Original Issue Discount”...................................................................................................................................
|
4.07
|
|
“Time
of Determination”...........................................................................................................................................
|
11.01
|
|
“Treasury
Regulations”
............................................................................................................................................
|
4.07
|
SECTION
1.03 Incorporation
by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms
used
in this Indenture have the following meanings:
“Commission”
means
the SEC.
“indenture
securities”
means
the Securities.
“indenture
security holder”
means
a
Securityholder.
“indenture
to be qualified”
means
this Indenture.
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee.
“obligor”
on
the
indenture securities means the Company.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned
to them by such definitions.
SECTION
1.04 Rules
of Construction.
Unless
the context otherwise requires:
(1) a
defined
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with United States generally accepted accounting principles as in
effect from time to time;
(3) “or”
is
not
exclusive;
7
(4) “including”
means
including, without limitation; and
(5) words
in
the singular include the plural, and words in the plural include the singular.
SECTION
1.05 Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments (which may take the form
of
an electronic writing or messaging or otherwise be in accordance with customary
procedures of the Depositary or the Trustee) of substantially similar tenor
signed by such Holders in person or by agent duly appointed in writing (which
may be in electronic form); and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, when it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the “Act”
of
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent (either of which may be
in
electronic form) shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution (or electronic delivery)
or by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing or
delivering such instrument or writing acknowledged to such officer the execution
(or electronic delivery) thereof. When such execution is by a signer acting
in a
capacity other than such signer’s individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer’s authority. The
fact and date of the execution of any such instrument or writing (electronic
or
otherwise), or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The
ownership of Securities shall be proved by the register maintained by the
Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Security shall bind every future Holder of the same
Security and the holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) If
the
Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a resolution of the Board of Directors, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
the
Company shall have no obligation to do so. If such a record
8
ARTICLE
2
THE
SECURITIES
SECTION
2.01 Form
and Dating.
The
Securities and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibits A-1 and A-3, which are a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage (provided that any such notation, legend
or
endorsement required by usage is in a form acceptable to the Company). The
Company shall provide any such notations, legends or endorsements to the Trustee
in writing. Each Security shall be dated the date of its
authentication.
(a) Intentionally
Omitted.
(b) Institutional
Accredited Investor Securities.
Except
as provided in this Section 2.01, 2.06 or 2.12, owners of beneficial interests
in Global Securities will not be entitled to receive physical delivery of
Certificated Securities. Securities offered and sold within the United States
to
institutional “accredited
investors”
as
defined in Rule 501(a)(1), (2) (3) and (7) under the Securities Act of 1933,
as
amended (the “Securities
Act”)
(“Institutional
Accredited Investors”)
shall
be issued, initially, in the form of an Institutional Accredited Investor
Security, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.
(c) Global
Securities in General.
Each
Global Security shall represent such of the outstanding Securities as shall
be
specified therein and each shall provide that it shall represent the aggregate
Principal Amount at Maturity of outstanding Securities from time to time
endorsed thereon and that the aggregate Principal Amount at Maturity of
outstanding Securities represented thereby may from time to time be reduced
or
increased, as appropriate, to reflect exchanges, redemptions and
conversions.
Any
adjustment of the aggregate Principal Amount at Maturity of a Global Security
to
reflect the amount of any increase or decrease in the Principal Amount at
Maturity of outstanding Securities represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 2.12 hereof and shall be made on the records of the Trustee and
the
Depositary.
(d) Book-Entry
Provisions.
This
Section 2.01(d) shall apply only to Global Securities deposited with or on
behalf of the Depositary.
9
The
Company shall execute and the Trustee shall, in accordance with this Section
2.01(d), authenticate and deliver initially one or more Global Securities that
(a) shall be registered in the name of the Depositary, (b) shall be delivered
by
the Trustee to the Depositary or pursuant to the Depositary’s instructions or
held by the Trustee as custodian for such Depositary and (c) shall bear legends
substantially to the following effect:
“UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT NOT IN
PART,
TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
(e) Certificated
Securities.
Securities not issued as interests in the Global Securities will be issued
in
certificated form substantially in the form of Exhibit A-3 attached
hereto.
SECTION
2.02 Execution
and Authentication.
The
Securities shall be executed on behalf of the Company by any Officer. The
signature of the Officer on the Securities may be manual or
facsimile.
Securities
bearing the manual or facsimile signatures of an individual who was at the
time
of the execution of the Securities the proper Officer of the Company shall
bind
the Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Securities or did not hold
such
office at the date of authentication of such Securities.
No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed
by
the Trustee by manual signature of an authorized signatory of the Trustee and
such certificate upon any Security shall be conclusive
10
The
Trustee shall authenticate and deliver Securities for original issue in an
aggregate Principal Amount at Maturity of up to $422,050,000 upon a Company
Order without any further action by the Company. The aggregate Principal Amount
at Maturity of Securities outstanding at any time may not exceed the amount
set
forth in the foregoing sentence, except as provided in Section
2.07.
The
Securities shall be issued only in registered form without coupons and only
in
denominations of $1,000 of Principal Amount at Maturity and any integral
multiple thereof.
SECTION
2.03 Registrar,
Paying Agent, Conversion Agent and Bid Solicitation Agent.
The
Company shall maintain an office or agency where Securities may be presented
for
registration of transfer or for exchange (“Registrar”),
an
office or agency where Securities may be presented for purchase or payment
(“Paying
Agent”)
and an
office or agency where Securities may be presented for conversion (“Conversion
Agent”).
The
Company shall also appoint a bid solicitation agent (the “Bid
Solicitation Agent”)
to act
pursuant to paragraph 5 of the Securities. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have
one
or more co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.05. The term Conversion
Agent includes any additional conversion agent, including any named pursuant
to
Section 4.05.
The
Company shall enter into an appropriate agency agreement with any Registrar
or
co-registrar, Paying Agent, Conversion Agent or Bid Solicitation Agent (other
than the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the
name and address of any such agent. If the Company fails to maintain a
Registrar, Paying Agent, Conversion Agent or Bid Solicitation Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation and
indemnity rights therefor pursuant to Section 7.07. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar. None of the Company or any Subsidiary or
any
Affiliate of either of them may act as Bid Solicitation Agent.
The
Company initially appoints the Trustee as Registrar, Conversion Agent, Paying
Agent and Bid Solicitation Agent in connection with the Securities.
SECTION
2.04 Paying
Agent to Hold Money in Trust.
Except as otherwise provided herein, not later than 10:00 a.m., New York
City time, on each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available
funds if deposited on the due date) sufficient to make such payments when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for
the
benefit of Securityholders or the Trustee all money held by the Paying Agent
for
the making of payments in respect of the Securities and shall notify the Trustee
of any default by the Company in making any such payment. At any time during
the
continuance of any such default, the Paying Agent shall, upon
11
SECTION
2.05 Securityholder
Lists. The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Securityholders.
If the Trustee is not the Registrar, the Company shall cause to be furnished
to
the Trustee at least semiannually on May 1 and November 1 a listing of
Securityholders dated within 15 days of the date on which the list is furnished
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names
and
addresses of Securityholders.
SECTION
2.06 Transfer
and Exchange. Subject
to Section 2.12 hereof,
(a) Upon
surrender for registration of transfer of any Security, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder’s attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.03, the Company shall execute, and the Trustee upon
receipt of a Company Order shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations, of a like aggregate Principal Amount
at Maturity. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges that may be imposed
in connection with the registration of transfer or exchange of the Securities
from the Securityholder requesting such registration of transfer or
exchange.
At
the
option of the Holder, Certificated Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount at Maturity, upon surrender of the Securities to be exchanged,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such Securityholder’s attorney duly
authorized in writing, at such office or agency. Whenever any Securities are
so
surrendered for exchange, the Company shall execute, and the Trustee upon
receipt of a Company Order shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The
Company shall not be required to make, and the Registrar need not register,
transfers or exchanges of Securities selected for redemption (except, in the
case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice has been
given
and not withdrawn by the Holder thereof in accordance with the terms of this
Indenture (except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or any Securities for a period of 15 days
before the mailing of a notice of redemption of Securities to be
redeemed.
12
(b) Notwithstanding
any provision to the contrary herein, so long as a Global Security remains
outstanding and is held by or on behalf of the Depositary, transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section
2.12 and this Section 2.06(b). Transfers of a Global Security shall be limited
to transfers of such Global Security in whole, or in part, to nominees of the
Depositary or to a successor of the Depositary or such successor’s
nominee.
(c) Successive
registrations and registrations of transfers and exchanges as aforesaid may
be
made from time to time as desired, and each such registration shall be noted
on
the register for the Securities.
(d) Any
Registrar appointed pursuant to Section 2.03 hereof shall provide to the Trustee
such information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Securities upon registration of transfer or
exchange of Securities.
(e) No
Registrar shall be required to make registrations of transfer or exchange of
Securities during any periods designated in the text of the Securities or in
this Indenture as periods during which such registration of transfers and
exchanges need not be made.
(f) If
Securities are issued upon the registration of transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legend set
forth on the form of Security attached hereto as Exhibit A-1 setting forth
such
restrictions (the “Legend”),
or if
a request is made to remove the Legend on a Security, the Securities so issued
shall bear the Legend, or the Legend shall not be removed, as the case may
be,
unless there is delivered to the Company and the Registrar such satisfactory
evidence, which shall include an Opinion of Counsel, as may be reasonably
required by the Company and the Registrar, that neither the Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of Rule 144A or Rule 144 or that
such Securities are not “restricted”
within
the meaning of Rule 144. Upon (i) provision of such satisfactory evidence,
or (ii) notification by the Company to the Trustee and Registrar of the sale
of
such Security pursuant to a registration statement that is effective at the
time
of such sale, the Trustee, upon receipt of a Company Order, shall authenticate
and deliver a Security that does not bear the Legend. If the Legend is removed
from the face of a Security and the Security is subsequently held by an
Affiliate of the Company, the Company shall use its reasonable best efforts
to
reinstate the Legend.
The
Trustee and the Registrar shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
SECTION
2.07 Replacement
Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their
13
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, or is about to be purchased by the Company pursuant
to
Article 3 hereof, the Company in its discretion may, instead of issuing a new
Security, pay or purchase such Security, as the case may be.
Upon
the
issuance of any new Securities under this Section, the Company may require
the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every
new
Security issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION
2.08 Outstanding
Securities; Determinations of Holders’ Action.
Securities outstanding at any time are all the Securities authenticated by
the Trustee, except for those cancelled by it, those paid pursuant to Section
2.10 and delivered to it for cancellation and those described in this Section
2.08 as not outstanding. A Security does not cease to be outstanding because
the
Company or an Affiliate thereof holds the Security; provided, however, that
in
determining whether the Holders of the requisite Principal Amount at Maturity
of
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any
such request, demand, authorization, direction, notice, consent or waiver,
only
Securities which a Responsible Officer of the Trustee actually knows to be
so
owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9).
If
a
Security is replaced pursuant to Section 2.07, the replaced Security ceases
to
be outstanding unless the Trustee and the Company receive proof satisfactory
to
each of them
14
If
the
Paying Agent holds, in accordance with this Indenture, on a Redemption Date,
or
on the Business Day following the Purchase Date, or on Stated Maturity, money
or
securities, if permitted hereunder, sufficient to pay Securities payable on
that
date, then immediately after such Redemption Date, Purchase Date or Stated
Maturity, as the case may be, such Securities shall cease to be outstanding
and
Original Issue Discount and interest (including contingent interest), if any,
on
such Securities shall cease to accrue; provided, that if such Securities are
to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture.
If
a
Security is converted in accordance with Article 11, then from and after the
time of conversion on the Conversion Date, such Security shall cease to be
outstanding and Original Issue Discount and interest (including contingent
interest), if any, shall cease to accrue on such Security.
SECTION
2.09 Temporary
Securities.
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for such purpose pursuant to Section 2.03, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount at
Maturity of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the
same
benefits under this Indenture as definitive Securities.
SECTION
2.10 Cancellation.
All Securities surrendered for payment, purchase by the Company pursuant to
Article 3, conversion, redemption or registration of transfer or exchange shall,
if surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver
to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the
Trustee. The Company may not issue new Securities to replace Securities it
has
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article 11. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of by the Trustee.
15
SECTION
2.11 Persons
Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of the Security or the payment
of any Redemption Price or Purchase Price in respect thereof, and interest
(including contingent interest, if any) thereon, for the purpose of conversion
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION
2.12 Global
Securities.
(a) Notwithstanding
any other provisions of this Indenture or the Securities, (A) transfers of
a
Global Security, in whole or in part, shall be made only in accordance with
Section 2.06 and Section 2.12(b)(i), (B) transfer of a beneficial interest
in a
Global Security for a Certificated Security shall comply with Section 2.06
and
Section 2.12(b)(i) below, and (C) transfers of a Certificated Security shall
comply with Section 2.06 and Section 2.12(b)(ii) and transfer of a Certificated
Security for a Beneficial Interest in a Global Security shall comply with
Section 2.06 and Section 2.12(b)(iii) below.
(b) Transfer
of Global Security.
A
Global Security may not be transferred, in whole or in part, to any Person
other
than the Depositary or a nominee or any successor thereof, and no such transfer
to any such other Person may be registered; provided that this clause (i) shall
not prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to
any
Person shall be effective under this Indenture or the Securities unless and
until such Security has been registered in the name of such Person. Nothing
in
this Section 2.12(b)(i) shall prohibit or render ineffective any transfer of
a
beneficial interest in a Global Security effected in accordance with the other
provisions of this Section 2.12(b).
(i) Restrictions
on Transfer of a Beneficial Interest in a Global Security for a Certificated
Security.
A
beneficial interest in a Global Security may not be exchanged for a Certificated
Security except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a request for transfer of a beneficial interest in
a
Global Security in accordance with Applicable Procedures for a Certificated
Security in the form satisfactory to the Trustee, together with:
| (A) |
written
instructions to the Trustee to make, or direct the Registrar to make,
an
adjustment on its books and records with respect to such Global Security
to reflect a decrease in the aggregate Principal Amount at Maturity
of the
Securities represented by the Global Security, such instructions
to
contain information regarding the Depositary account to be credited
with
such decrease; and
|
| (B) |
if
the Company or Registrar so requests, an Opinion of Counsel or other
evidence reasonably satisfactory to them as to the compliance with
the
restrictions set forth in the
Legend,
|
16
then
the
Trustee shall cause, or direct the Registrar to cause, in accordance with the
standing instructions and procedures existing between the Depositary and the
Registrar, the aggregate Principal Amount at Maturity of Securities represented
by the Global Security to be decreased by the aggregate Principal Amount at
Maturity of the Certificated Security to be issued, shall authenticate and
deliver such Certificated Security and shall debit or cause to be debited to
the
account of the Person specified in such instructions a beneficial interest
in
the Global Security equal to the Principal Amount at Maturity of the
Certificated Security so issued.
(ii) Transfer
and Exchange of Certificated Securities.
When
Certificated Securities are presented to the Registrar with a
request:
(x) to
register the transfer of such Certificated Securities; or
(y) to
exchange such Certificated Securities for an equal Principal Amount at Maturity
of Certificated Securities of other authorized denominations,
the
Registrar shall register the transfer or make the exchange as requested if
its
reasonable requirements for such transaction are met; provided, however, that
the Certificated Securities surrendered for registration of transfer or
exchange:
(A) shall
be
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the
Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing;
and
(B) so
long
as such Securities are Restricted Securities, such Securities are being
transferred or exchanged pursuant to an effective
registration
statement under the Securities Act or, if being transferred pursuant to clause
(1), (2) or (3) below, are accompanied by the
additional
information and documents specified in each clause, as applicable:
(1) if
such
Certificated Securities are being delivered to the Registrar by a Holder for
registration in the name of
such
Holder, without transfer, a certification from such Holder to that effect;
or
(2) if
such
Certificated Securities are being transferred to the Company, a certification
to
that effect; or
(3) if
such
Certificated Securities are being transferred pursuant to an exemption from
registration (i) a certification
to
that
effect (in the form attached as B-1, if applicable).
(iii) Restrictions
on Transfer of a Certificated Security for a Beneficial Interest in a Global
Security.
A
Certificated Security may
not
be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below.
17
Upon
receipt by the Trustee of a Certificated Security, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Trustee,
together with written instructions directing the Trustee to make, or to direct
the Registrar to make, an adjustment on its books and records with respect
to
such Global Security to reflect an increase in the aggregate Principal Amount
at
Maturity of the Securities represented by the Global Security, such instructions
to contain information regarding the Depositary account to be credited with
such
increase, then the Trustee shall cancel such Certificated Security and cause,
or
direct the Registrar to cause, in accordance with the standing instructions
and
procedures existing between the Depositary and the Registrar, the aggregate
Principal Amount at Maturity of Securities represented by the Global Security
to
be increased by the aggregate Principal Amount at Maturity of the Certificated
Security to be exchanged, and shall credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in
the Global Security equal to the Principal Amount at Maturity of the
Certificated Security so cancelled. If no Global Securities are then
outstanding, the Company shall issue and the Trustee, upon receipt of a Company
Order, shall authenticate a new Global Security in the appropriate Principal
Amount at Maturity.
(c) Intentionally
Omitted.
(d) Intentionally
Omitted.
(e) Intentionally
Omitted.
(f) The
provisions of clauses (1), (2), (3), (4) and (5) below shall apply only to
Global Securities:
(1) Notwithstanding
any other provisions of this Indenture or the Securities, except as provided
in
Section 2.12(b)(i), a Global Security shall not be exchanged in whole or in
part
for a Security registered in the name of any Person other than the Depositary
or
one or more nominees thereof, provided that a Global Security may be exchanged
for Securities registered in the names of any person designated by the
Depositary in the event that (i) the Depositary has notified the Company that
it
is unwilling or unable to continue as Depositary for such Global Security or
such Depositary has ceased to be a “clearing
agency”
registered under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”),
and a
successor Depositary is not appointed by the Company within 90 days (ii) the
Company elects to discontinue use of the system of book-entry transfer through
DTC (or any successor depositary); or (iii) an Event of Default has occurred
and
is continuing with respect to the Securities. Any Global Security exchanged
pursuant to clause (i) of this sub-section shall be so exchanged in whole and
not in part, and any Global Security exchanged pursuant to clause (ii) of this
sub-section may be exchanged in whole or from time to time in part as directed
by the Depositary. Any Security issued in exchange for a Global Security or
any
portion thereof shall be a
18
Global
Security; provided that any such Security so issued that is registered in the
name of a person other than the Depositary or a nominee thereof shall not be
a
Global Security.
(2) Securities
issued in exchange for a Global Security or any portion thereof shall be issued
in definitive, fully registered form, without interest coupons, shall have
an
aggregate Principal Amount at Maturity equal to that of such Global Security
or
portion thereof to be so exchanged, shall be registered in such names and be
in
such authorized denominations as the Depositary shall designate and shall bear
the applicable legends provided for herein. Any Global Security to be exchanged
in whole shall be surrendered by the Depositary to the Trustee, as Registrar.
With regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Trustee is acting
as
custodian for the Depositary or its nominee with respect to such Global
Security, the Principal Amount at Maturity thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject
to the provisions of clause (5) below, the registered Holder may grant proxies
and otherwise authorize any Person, including Agent Members (as defined below)
and persons that may hold interests through Agent Members, to take any action
which a holder is entitled to take under this Indenture or the
Securities.
(4) In
the
event of the occurrence of any of the events specified in clause (1) above,
the
Company will promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form, without interest
coupons.
(5) Neither
any members of, or participants in, the Depositary (collectively, the
“Agent
Members”)
nor
any other Persons on whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global Security registered in the
name
of the Depositary or any nominee thereof, or under any such Global Security,
and
the Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or such nominee, as the case may be, or impair, as between the Depositary,
its
Agent Members and any other person on whose behalf an Agent Member may act,
the
operation of
19
customary
practices of such Persons governing the exercise of the rights of a holder
of
any Security.
SECTION
2.13 CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on
the
Securities, and any such redemption shall not be affected by any defect in
or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE
3
REDEMPTION
AND PURCHASES
SECTION
3.01 Right
to Redeem; Notices to Trustee.
The Company, at its option, may redeem the Securities in accordance with
the provisions of paragraphs 6 and 8 of the Securities. If the Company elects
to
redeem Securities pursuant to paragraph 6 of the Securities, it shall notify
the
Trustee in writing of the Redemption Date, the Principal Amount at Maturity
of
Securities to be redeemed, the Redemption Price and the amount of contingent
interest, if any, payable on the Redemption Date.
The
Company shall give the notice to the Trustee provided for in this Section 3.01
by a Company Order, at least 20 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee).
SECTION
3.02 Selection
of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed pro rata or by lot or by any other method
the Trustee considers fair and appropriate (so long as such method is not
prohibited by the rules of any stock exchange on which the Securities are then
listed). The Trustee shall make the selection at least 15 days but not more
than
60 days before the Redemption Date from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
Principal Amount at Maturity of Securities that have denominations larger than
$1,000.
Securities
and portions of the Securities the Trustee selects shall be in Principal Amounts
at Maturity of $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be
redeemed.
If
any
Security selected for partial redemption is converted in part before termination
of the conversion right with respect to the portion of the Security so selected,
the converted portion of such Security shall be deemed (so far as may be) to
be
the portion selected for redemption. Securities which have been converted during
a selection of Securities to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection.
20
SECTION
3.03 Notice
of Redemption.
At least 15 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed.
The
notice shall identify the Securities to be redeemed and shall
state:
(1) the
Redemption Date;
(2) the
Redemption Price and, to the extent known at the time of such notice, the amount
of contingent interest, if any, payable on the Redemption Date;
(3) the
Conversion Rate;
(4) the
name
and address of the Paying Agent and Conversion Agent;
(5) that
Securities called for redemption may be converted at any time before the close
of business on the second Business Day immediately preceding the Redemption
Date;
(6) that
Holders who want to convert Securities must satisfy the requirements set forth
in paragraph 9 of the Securities;
(7) that
Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and contingent interest, if any;
(8) if
fewer
than all the outstanding Securities are to be redeemed, the certificate number
and Principal Amounts at Maturity of the particular Securities to be
redeemed;
(9) that,
unless the Company defaults in making payment of such Redemption Price and
contingent interest, if any, Original Issue Discount and interest (including
contingent interest), if any, on Securities called for redemption will cease
to
accrue on and after the Redemption Date;
| (10) |
the
CUSIP number of the Securities; and
|
| (11) |
any
other information the Company wants to
present.
|
At
the
Company’s request, the Trustee shall give the notice of redemption to Holders in
the Company’s name and at the Company’s expense, provided that the Company makes
such request at least five Business Days (unless a shorter period shall be
satisfactory to the Trustee) prior to the date such notice of redemption must
be
mailed.
SECTION
3.04 Effect
of Notice of Redemption.
Once notice of redemption is given, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price
(together with accrued contingent interest, if any, to but not including the
date of redemption) stated in the notice except for Securities which are
converted in accordance with the terms of this Indenture. Upon surrender to
the
Paying Agent, such Securities shall be
21
SECTION
3.05 Deposit
of Redemption Price.
Prior to 10:00 a.m. (New York City time), on any Redemption Date, the
Company shall deposit with the Paying Agent (or if the Company or a Subsidiary
or an Affiliate of either of them is the Paying Agent, shall segregate and
hold
in trust) money sufficient to pay the Redemption Price of, and any accrued
and
unpaid contingent interest to but not including the date of redemption with
respect to, all Securities to be redeemed on that date other than Securities
or
portions of Securities called for redemption which on or prior thereto have
been
delivered by the Company to the Trustee for cancellation or have been converted.
The Paying Agent shall as promptly as practicable return to the Company any
money not required for that purpose because of conversion of Securities pursuant
to Article 11. If such money is then held by the Company in trust and is not
required for such purpose it shall be discharged from such trust.
SECTION
3.06 Securities
Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder a new
Security in an authorized denomination equal in Principal Amount at Maturity
to
the unredeemed portion of the Security surrendered.
SECTION
3.07 Conversion
Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company may arrange for
the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment banks or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of, and
any
accrued and unpaid contingent interest with respect to, such Securities.
Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Prices of such Securities 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, any Securities 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 11) surrendered by such purchasers for conversion, all
as
of immediately prior to the close of business on the Business Day prior to
the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption
of
Securities. Without the Trustee’s prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with
any
such arrangement for the purchase and conversion of any Securities between
the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
22
(a) General.
Securities shall be purchased by the Company pursuant to paragraph 7 of the
Securities as of April 3, 2012, 2017, 2022 and 2027 (each, a “Purchase
Date”),
at
the purchase price of $551.27 per $1,000 of Principal Amount at Maturity as
of
April 3, 2012, of $639.77 per $1,000 of Principal Amount of Maturity as of
April
3, 2017, of $742.47 per $1,000 of Principal Amount at Maturity as of April
3,
2022, and of $861.67 per $1,000 of Principal Amount at Maturity as of April
3,
2027, (each, a “Purchase
Price”,
as
applicable), at the option of the Holder thereof, upon:
(1) delivery
to the Paying Agent, by the Holder of a written notice of purchase (a
“Purchase
Notice”)
at any
time from the opening of business on the date that is at least twenty (20)
Business Days prior to a Purchase Date until the close of business on such
Purchase Date stating:
(A) the
certificate number of the Security which the Holder will deliver to be
purchased,
(B) the
portion of the Principal Amount at Maturity of the Security which the Holder
will deliver to be purchased, which portion must be a Principal Amount at
Maturity of $1,000 or an integral multiple thereof, and
(C) that
such
Security shall be purchased as of the Purchase Date pursuant to the terms and
conditions specified in paragraph 7 of the Securities and in this
Indenture.
(2) delivery
of such Security to the Paying Agent prior to, on or after the Purchase Date
(together with all necessary endorsements) at the offices of the Paying Agent,
such delivery being a condition to receipt by the Holder of the Purchase Price
therefor; provided, however, that such Purchase Price shall be so paid pursuant
to this Section 3.08 only if the Security so delivered to the Paying Agent
shall
conform in all respects to the description thereof in the related Purchase
Notice, as determined by the Company.
The
Company shall purchase from the Holder thereof, pursuant to this Section 3.08,
a
portion of a Security if the Principal Amount at Maturity of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any
purchase by the Company contemplated pursuant to the provisions of this Section
3.08 shall be consummated by the delivery of the consideration to be received
by
the Holder (together with accrued and unpaid contingent interest, if any)
promptly following the later of the Purchase Date and the time of delivery
of
the Security.
23
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent
the
Purchase Notice contemplated by this Section 3.08(a) shall have the right to
withdraw such Purchase Notice at any time prior to the close of business on
the
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.10.
The
Paying Agent shall promptly notify the Company of the receipt by it of any
Purchase Notice or written notice of withdrawal thereof.
(b) Manner
of Payment of Purchase Price.
The
Securities to be purchased pursuant to Section 3.08(a) shall be paid for in
U.S.
legal tender (“cash”),
subject to the conditions set forth in Sections 3.08(c). At least three Business
Days before the Company Notice Date, the Company shall deliver an Officers’
Certificate to the Trustee specifying:
(i) the
information required by Section 3.08(e), and
(ii) whether
the Company desires the Trustee to give the Company Notice required by Section
3.08(e).
(c) Purchase
with Cash.
On each
Purchase Date, the Purchase Price of Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, shall be paid by the Company with cash equal to the aggregate Purchase
Price of such Securities. The Company Notice, as provided in Section 3.08(e),
shall be sent to Holders (and to beneficial owners as required by applicable
law) not less than 20 Business Days prior to such Purchase Date (the
“Company
Notice Date”).
(d) Intentionally
Omitted.
(e) Notice
of Purchase.
The
Company’s notice of election to purchase shall be sent to the Holders (and to
beneficial owners as required by applicable law) in the manner provided in
Section 14.02 at the time specified in Section 3.08(c) or (d), as applicable
(the “Company
Notice”).
Such
Company Notice shall contain the following information:
(i) the
Purchase Price, the Conversion Rate and, to the extent known at the time of
such
notice, the amount of contingent interest, if any, that will be accrued and
payable with respect to the Securities as of the Purchase Date;
(ii) the
name
and address of the Paying Agent and the Conversion Agent;
(iii) that
Securities as to which a Purchase Notice has been given may be converted
pursuant to Article 11 hereof only if the applicable Purchase Notice has been
withdrawn in accordance with the terms of this Indenture;
(iv) that
Securities must be surrendered to the Paying Agent to collect payment of the
Purchase Price and contingent interest, if any;
(v) that
the
Purchase Price for any Security as to which a Purchase Notice has been given
and
not withdrawn, together with any accrued contingent interest
24
payable
with respect thereto,
will be paid promptly following the later of the Purchase Date and the time
of
surrender of such Security as described in
(iv);
(vi) the
procedures the Holder must follow to exercise rights under Section 3.08 and
a
brief description of those rights;
(vii) briefly,
the conversion rights of the Securities;
(viii) the
procedures for withdrawing a Purchase Notice (including, without limitation,
for
a conditional withdrawal pursuant to the terms of Section 3.08(a)(1)(D) or
Section 3.10);
(ix) that,
unless the Company defaults in making payment of such Purchase Price and
contingent interest, if any, Original Issue Discount and interest (including
contingent interest), if any, on Securities surrendered for purchase will cease
to accrue on and after the Purchase Date; and
(x) the
CUSIP
number of the Securities.
At
the
Company’s request, the Trustee shall give such Company Notice in the Company’s
name and at the Company’s expense; provided, however, that, in all cases, the
text of such Company Notice shall be prepared by the Company.
(f) Covenants
of the Company.
All
shares of Common Stock delivered upon purchase of the Securities shall be newly
issued shares or treasury shares, shall be duly authorized, validly issued,
fully paid and nonassessable and shall be free from preemptive rights and free
of any lien or adverse claim created by the Company.
(g) Intentionally
Omitted.
(h) Intentionally
Omitted.
SECTION
3.09 [Intentionally
Omitted]
SECTION
3.10 Effect
of Purchase Notice.
Upon
receipt by the Paying Agent of the Purchase Notice specified in Section 3.08(a),
the Holder of the Security in respect of which such Purchase Notice was given
shall (unless such Purchase Notice is withdrawn as specified in the following
two paragraphs) thereafter be entitled to receive solely the Purchase Price,
and
any accrued and unpaid interest, with respect to such Security. Such Purchase
Price and contingent interest, if any, shall be paid to such Holder, subject
to
receipt of funds by the Paying Agent, promptly following the later of (x) the
Purchase Date, with respect to such Security (provided the conditions in Section
3.08(a) have been satisfied) and (y) the time of delivery of such Security
to
the Paying Agent by the Holder thereof in the manner required by Section
3.08(a). Securities in respect of which a Purchase Notice has been given by
the
Holder thereof may not be converted pursuant to Article 11 hereof on or after
the date of the delivery of such Purchase Notice, unless such Purchase Notice
has first been validly withdrawn as specified in the following two
paragraphs.
25
A
Purchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice at any time prior to the close of business on the Purchase Date
specifying:
(1) the
certificate number of the Security in respect of which such notice of withdrawal
is being submitted,
(2) the
Principal Amount at Maturity of the Security with respect to which such notice
of withdrawal is being submitted, and
(3) the
Principal Amount at Maturity, if any, of such Security which remains subject
to
the original Purchase Notice and which has been or will be delivered for
purchase by the Company.
A
written
notice of withdrawal of a Purchase Notice shall be in the form set forth in
the
preceding paragraph.
There
shall be no purchase of any Securities pursuant to Section 3.08 or 3.09 if
there
has occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Securities, of the required Purchase Notice) and is continuing
an Event of Default (other than a default in the payment of the Purchase Price
and any accrued and unpaid contingent interest with respect to such Securities).
The Paying Agent will promptly return to the respective Holders thereof any
Securities (x) with respect to which a Purchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of
an
Event of Default (other than a default in the payment of the Purchase Price
and
any accrued and unpaid contingent interest with respect to such Securities)
in
which case, upon such return, the Purchase Notice with respect thereto shall
be
deemed to have been withdrawn.
SECTION
3.11 Deposit
of Purchase Price.
Prior to 10:00 a.m., New York City time, on the Business Day following the
Purchase Date, the Company shall deposit with the Trustee or with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either of them
is
acting as the Paying Agent, shall segregate and hold in trust as provided in
Section 2.04) an amount of money (in immediately available funds if deposited
on
such Business Day), sufficient to pay the aggregate Purchase Price of, and
any
accrued and unpaid contingent interest with respect to, all the Securities
or
portions thereof which are to be purchased as of the Purchase Date.
SECTION
3.12 Securities
Purchased in Part.
Any Security which is to be purchased only in part shall be surrendered at
the office of the Paying Agent (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to
the Company and the Trustee duly executed by, the Holder thereof or such
Holder’s attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate Principal Amount at
Maturity equal to, and in exchange for, the portion of the Principal Amount
at
Maturity of the Security so surrendered which is not purchased.
26
SECTION
3.13 Covenant
to Comply With Securities Laws Upon Purchase of Securities.
In connection with any offer to purchase or purchase of Securities under
Section 3.08 or 3.09 hereof (provided that such offer or purchase constitutes
an
“issuer
tender offer”
for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall to the extent applicable (i) comply with
Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, and (iii) otherwise comply with all Federal and state securities
laws so as to permit the rights and obligations under Sections 3.08 and 3.09
to
be exercised in the time and in the manner specified in Sections 3.08 and
3.09.
SECTION
3.14 Repayment
to the Company.
The Trustee and the Paying Agent shall promptly return to the Company any
cash that remains unclaimed as provided in paragraph 15 of the Securities,
together with interest or dividends, if any, thereon (subject to the provisions
of Section 7.01(f)), held by them for the payment of the Purchase Price or
contingent interest, if any; provided, however, that to the extent that the
aggregate amount of cash deposited by the Company pursuant to Section 3.11
exceeds the aggregate Purchase Price and the accrued and unpaid contingent
interest with respect to, the Securities or portions thereof which the Company
is obligated to purchase as of the Purchase Date, whether as a result of
withdrawal or otherwise, then promptly after the Business Day following the
Purchase Date, the Trustee shall return any such excess to the Company together
with interest, if any, thereon (subject to the provisions of Section
7.01(f)).
ARTICLE
4
COVENANTS
SECTION
4.01 Payment
of Securities.
The Company shall promptly make all payments in respect of the Securities
on the dates and in the manner provided in the Securities or pursuant to this
Indenture. Any amounts to be given to the Trustee or Paying Agent, shall be
deposited with the Trustee or Paying Agent by 10:00 a.m., New York City time,
by
the Company. Principal Amount at Maturity, Restated Principal Amount, Issue
Price plus accrued Original Issue Discount, Redemption Price, Purchase Price,
and contingent interest, if any, shall be considered paid on the applicable
date
due if on such date (or, in the case of a Purchase Price, on the Business Day
following the applicable Purchase Date) the Trustee or the Paying Agent holds,
in accordance with this Indenture, money sufficient to pay all such amounts
then
due.
The
Company shall, to the extent permitted by law, pay interest on overdue amounts
at the rate per annum set forth in paragraph 1 of the Securities, compounded
semiannually, which interest shall accrue from the date such overdue amount
was
originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for. All such interest shall be payable on
demand. The accrual of such interest on overdue amounts shall be in lieu of,
and
not in addition to, the continued accrual of Original Issue
Discount.
SECTION
4.02 SEC
and Other Reports.
If requested by the Trustee, the Company shall deliver to the Trustee,
within 15 days after it files such annual and quarterly
27
SECTION
4.03 Compliance
Certificate.
The Company shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on August
2,
2007) an Officers’ Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and if
the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION
4.04 Further
Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary
or
proper to carry out more effectively the purposes of this
Indenture.
SECTION
4.05 Maintenance
of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency of the Trustee, Registrar, Paying Agent and Conversion
Agent where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange, purchase,
redemption or conversion and where notices and demands to or upon the Company
in
respect of the Securities and this Indenture may be served. The office of the
Trustee, located at Regions Bank New York Drop Facility, One Wall Street, 3rd
Floor Window A New York, New York 10286 (Attention: Corporate Trust Department),
shall initially be such office or agency for all of the aforesaid purposes.
The
Company shall give prompt written notice to the Trustee of the location, and
of
any change in the location, of any such office or agency (other than a change
in
the location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
14.02.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes.
SECTION
4.06 Delivery
of Certain Information.
At any time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, upon the request of a Holder or any beneficial holder of
Securities or shares of Common Stock which are restricted
securities
28
SECTION
4.07 Calculation
of Original Issue Discount.
The Company agrees, and each Holder and any beneficial owner of a Security
by its purchase thereof shall be deemed to agree, to treat, for United States
federal income tax purposes, the Securities as debt instruments that are subject
to Section 1.1275-4(b) of the Treasury regulations promulgated by the United
States Department of the Treasury pursuant to the Internal Revenue Code of
1986,
as amended (the “Treasury
Regulations”).
For
United States federal income tax purposes, the Company and each Holder or
beneficial holder of a Security agree to treat the fair market value of the
Common Stock received upon the conversion of a Security as a contingent payment
for purposes of Treasury Regulation Section 1.1275-4(b), and to accrue interest
with respect to outstanding Securities as original issue discount (“Tax
Original Issue Discount”)
according to the “noncontingent
bond method,”
set
forth in section 1.1275-4(b) of the Treasury Regulations, using a comparable
yield of 7.32 percent, compounded semiannually and the projected payment
schedule attached as Annex C to this Indenture. The Company shall file with
the
Trustee promptly at the end of each calendar year (i) a written notice
specifying the amount of Tax Original Issue Discount for United States federal
income tax purposes (including daily rates and accrual periods) accrued on
outstanding Securities as of the end of such year and (ii) such other specific
information relating to such Tax Original Issue Discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to time, including
the amount of any adjustment made under the noncontingent bond method to account
for the amount of any difference between the amount of an actual payment and
the
amount of a projected payment.
The
Company acknowledges and agrees, and each Holder and any beneficial owner of
a
Security by its purchase thereof shall be deemed to acknowledge and agree,
that
(i) the comparable yield and the schedule of projected payments are determined
on the basis of an assumption of linear growth of the stock price and are not
determined for any purpose other than for the determination of interest accruals
and adjustments thereof in respect of the Securities for United States federal
income tax purposes and (ii) the comparable yield and the schedule of projected
payments do not constitute a projection or representation regarding the amounts
payable on the Securities.
SECTION
4.08 Limitation
on Guarantees of Indebtedness by Domestic Subsidiaries.
The Company will not permit any domestic Subsidiary to guarantee the
payment of any Debt of the Company unless such domestic Subsidiary
simultaneously executes and delivers a supplemental indenture to the indenture
providing for a Guarantee of the Securities by such domestic Subsidiary to
the
extent required in Article 13 hereof.
29
ARTICLE
5
SUCESSOR
CORPORATION
SECTION
5.01 When
Company May Merge or Transfer Assets.
The
Company shall not consolidate with or merge with or into any other person
or
convey, transfer or lease all or substantially all of its properties and
assets
to any person, nor will the Company permit any Subsidiary to enter into any
such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, transfer,
lease or other disposition of all or substantially all of the properties
and
assets of the Company and its Subsidiaries on a consolidated basis to any
other
person or persons, unless:
(a) either
(1) the Company or such subsidiary shall be the surviving corporation or (2)
the
person (if other than the Company) formed by such consolidation or into which
the Company or such Subsidiary is merged or the person which acquires by
conveyance, transfer or lease the properties and assets of the Company or such
Subsidiary substantially as an entirety (i) shall be organized and validly
existing under the laws of the United States or any state thereof or the
District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company or such
Subsidiary under the Securities and this Indenture;
(b) immediately
after giving effect to such transaction, no Default shall have occurred and
be
continuing; and
(c) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this Article
5
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other
than
to the Company or another Subsidiary), which, if such assets were owned by
the
Company, would constitute all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially
all
of the properties and assets of the Company.
The
successor person formed by such consolidation or into which the Company or
the
applicable Subsidiary is merged or the successor person to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for,
and may exercise every right and power of, the Company or the applicable
Subsidiary under this Indenture with the same effect as if such successor had
been named as the Company or the applicable Subsidiary herein; and thereafter,
except in the case of a lease and any obligations the Company or the applicable
Subsidiary may have under a supplemental indenture pursuant to Section 11.14,
the Company or the applicable Subsidiary shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject
to
Section 9.06, the Company, the applicable Subsidiary, the Trustee and the
successor person shall enter into a supplemental indenture to evidence the
succession and substitution of such successor person and such discharge and
release of the Company and the applicable Subsidiary.
30
ARTICLE
6
DEFAULTS
AND REMEDIES
SECTION
6.01 Events
of Default.
An
“Event
of Default”
occurs
if:
(1) the
Company defaults in payment of any contingent interest or of interest which
becomes payable after the Securities have been converted to semiannual coupon
notes following the occurrence of a Tax Event, which default, in either case,
continues for 30 days;
(2) the
Company defaults in the payment of the Principal Amount at Maturity (or, if
the
Securities have been converted to semiannual coupon notes following a Tax Event
pursuant to Article 10, the Restated Principal Amount), Issue Price plus accrued
Original Issue Discount, Redemption Price or Purchase Price on any Security
when
the same becomes due and payable at its Stated Maturity, upon redemption, upon
declaration, when due for purchase by the Company or otherwise;
(3) the
Company or any Guarantor fails to comply with any of the other agreements in
the
Securities, any Guarantee or this Indenture (other than those referred to in
clauses (1) and (2) above) and such failure continues for 60 days after receipt
by the Company of a Notice of Default;
(4) (a)
failure of the Company to make any payment by the end of any applicable grace
period after maturity of Debt in an amount (taken together with amounts in
(b)
below) in excess of $10,000,000 and continuance of such failure, or (b) an
acceleration of Debt has occurred in an amount (taken together with amounts
in
(a) above) in excess of $10,000,000 because of a default with respect to such
Debt without such Debt having been discharged or such acceleration having been
cured, waived, rescinded or annulled, in the case of (a) or (b) above, for
a
period of 30 days after receipt by the Company of a Notice of Default; provided,
however, that if any such failure or acceleration referred to in (a) or (b)
above shall cease or be cured, waived, rescinded or annulled, then the Event
of
Default by reason thereof shall be deemed not to have occurred;
(5) any
Guarantee ceases to be in full force and effect or is declared null and void
or
any Guarantor denies that it has any further liability under any Guarantee,
or
gives notice to such effect (other than by reason of the termination of this
Indenture or the release of any such Guarantee in accordance with this
Indenture) and such condition shall have continued for a period of 30 days
after
written notice of such failure requiring the Guarantor and the Company to remedy
the same shall have been given (x) to the Company by the Trustee or (y) to
the
Company and the Trustee by the holders of 25% in aggregate principal amount
of
the Securities then outstanding; or
31
(6) the
Company or any Significant Subsidiary pursuant to or under or within the meaning
of any Bankruptcy Law:
(A) commences
a voluntary case or proceeding;
(B) consents
to the entry of an order for relief against it in an involuntary case or
proceeding or the commencement of any case
against it;
(C) consents
to the appointment of a Custodian of it or for any substantial part of its
property;
(D) makes
a
general assignment for the benefit of its creditors;
(E) files
a
petition in bankruptcy or answer or consent seeking reorganization or relief;
or
(F) consents
to the filing of such petition or the appointment of or taking possession by
a
Custodian; or
(7) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is
for
relief against the Company or any Significant Subsidiary in an involuntary
case
or proceeding, or adjudicates the Company or any Significant Subsidiary
insolvent or bankrupt;
(B) appoints
a Custodian of the Company or any Significant Subsidiary or for any substantial
part of its property; or
(C) orders
the winding up or liquidation of the Company or any Significant
Subsidiary;
and
the
order or decree remains unstayed and in effect for 60 days.
“Bankruptcy
Law”
means
Title 11, United States Code, or any similar Federal or state law for the relief
of debtors.
“Custodian”
means
any receiver, trustee, assignee, liquidator, custodian or similar official
under
any Bankruptcy Law.
A
Default
under clause (3) or clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount at Maturity of the Securities at the time outstanding notify
the Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in clause
(3)
or clause (4) above after actual receipt of such notice. Any such notice must
specify the Default, demand that it be remedied and state that such notice
is a
“Notice
of Default”.
32
The
Company shall deliver to the Trustee, within 30 days after it becomes aware
of
the occurrence thereof, written notice of any event which with the giving of
notice or the lapse of time, or both, would become an Event of Default under
clause (3) or clause (4) above, its status and what action the Company is taking
or proposes to take with respect thereto.
SECTION
6.02 Acceleration.
If an Event of Default (other than an Event of Default specified in Section
6.01(6) or (7) in respect of the Company) occurs and is continuing, the Trustee
by written Notice to the Company, or the Holders of at least 25% in aggregate
Principal Amount at Maturity of the Securities at the time outstanding by notice
to the Company and the Trustee, may declare the Issue Price plus accrued
Original Issue Discount through the date of declaration, and any accrued and
unpaid interest (including contingent interest) through the date of such
declaration, on all the Securities to be immediately due and payable. Upon
such
a declaration, such Issue Price plus accrued Original Issue Discount, and such
accrued and unpaid interest (including contingent interest), if any, shall
be
due and payable immediately. If an Event of Default specified in Section 6.01(6)
or (7) occurs in respect of the Company and is continuing, the Issue Price
plus
accrued Original Issue Discount plus accrued and unpaid interest (including
contingent interest), if any, on all the Securities shall become and be
immediately due and payable without any declaration or other act on the part
of
the Trustee or any Securityholders. The Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding, by
notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have
been cured or waived except nonpayment of the Issue Price plus accrued Original
Issue Discount plus accrued and unpaid interest that have become due solely
as a
result of acceleration and if all amounts due to the Trustee under Section
7.07
have been paid. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION
6.03 Other
Remedies. If
an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of the Issue Price plus accrued Original
Issue Discount on the Securities or to enforce the performance of any provision
of the Securities or this Indenture.
The
Trustee may maintain a proceeding even if the Trustee does not possess any
of
the Securities or does not produce any of the Securities in the proceeding.
A
delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of, or acquiescence in, the Event of Default. Except
as
set forth in Section 2.07 hereof, no remedy is exclusive of any other remedy.
All available remedies are cumulative.
SECTION
6.04 Waiver
of Past Defaults.
Subject to Section 6.02, the Holders of a majority in aggregate Principal
Amount at Maturity of the Securities at the time outstanding, by notice to
the
Trustee (and without notice to any other Securityholder), may waive an existing
Default and its consequences except (1) an Event of Default described in Section
6.01(1) or (2), (2) a Default in respect of a provision that under Section
9.02
cannot be amended without the consent of each Securityholder affected or (3)
a
Default which constitutes a failure to convert any Security in accordance with
the terms of Article 11. When a Default is waived, it is deemed cured, but
no
such waiver shall extend to any subsequent or other Default or impair any
33
SECTION
6.05 Control
by Majority.
The Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee
may
refuse to follow any direction that conflicts with law or this Indenture or
that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability unless
the Trustee is offered indemnity satisfactory to it. This Section 6.05 shall
be
in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION
6.06 Limitation
on Suits.
A
Securityholder may not pursue any remedy with respect to this Indenture or
the
Securities unless:
(1) the
Holder gives to the Trustee written notice stating that an Event of Default
is
continuing;
(2) the
Holders of at least 25% in aggregate Principal Amount at Maturity of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such
Holder or Holders offer to the Trustee security or indemnity satisfactory to
the
Trustee against any loss, liability or expense;
(4) the
Trustee does not comply with the request within 60 days after receipt of such
notice, request and offer of security or indemnity; and
(5) the
Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A
Securityholder may not use this Indenture to prejudice the rights of any other
Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION
6.07 Rights
of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the Principal Amount at Maturity (or if the
Securities have been converted to semiannual coupon notes following a Tax Event
pursuant to Article 10, the Restated Principal Amount), Issue Price plus accrued
Original Issue Discount, Redemption Price, Purchase Price, contingent interest
or interest, if any, in respect of the Securities held by such Holder, on or
after the respective due dates expressed in the Securities or any Redemption
Date, and to convert the Securities in accordance with Article 11, or to bring
suit for the enforcement of any such payment on or after such respective dates
or the right to convert, shall not be impaired or affected adversely without
the
consent of such Holder.
34
SECTION
6.08 Collection
Suit by Trustee.
If an Event of Default described in Section 6.01(1) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee
of
an express trust against the Company for the whole amount owing with respect
to
the Securities and the amounts provided for in Section 7.07.
SECTION
6.09 Trustee
May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the Principal Amount at
Maturity, Restated Principal Amount, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price, contingent interest or interest,
if
any, in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of any such amount)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to
file
and prove a claim for the whole amount of the Principal Amount at Maturity,
Restated Principal Amount, Issue Price plus accrued Original Issue Discount,
Redemption Price, Purchase Price, and interest (including contingent interest),
if any, as the case may be, and to file such other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.07) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each Holder
to
make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other
amounts due the Trustee under Section 7.07.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION
6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST:
to
the Trustee for amounts due under Section 7.07;
SECOND:
to Securityholders for amounts due and unpaid on the Securities for the
Principal Amount at Maturity, Restated Principal Amount, Issue Price plus
35
accrued
Original Issue Discount, Redemption Price, Purchase Price, and interest
(including contingent interest), if any, as the case may be, ratably, without
preference or priority of any kind, according to such amounts due and payable
on
the Securities; and
THIRD:
the balance, if any, to the Company.
The
Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company
a
notice that states the record date, the payment date and the amount to be
paid.
SECTION
6.11 Undertaking
for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by
it as Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the
costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit
by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders
of more than 10% in aggregate Principal Amount at Maturity of the Securities
at
the time outstanding. This Section 6.11 shall be in lieu of Section 315(e)
of
the TIA and such Section 315(e) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION
6.12 Waiver
of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take
the benefit or advantage of, any stay or extension law or any usury or other
law
wherever enacted, now or at any time hereafter in force, which would prohibit
or
forgive the Company from paying all or any portion of the Principal Amount
at
Maturity, Restated Principal Amount, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price or contingent interest, if any,
in
respect of Securities or any interest on such amounts, as contemplated herein,
or which may affect the covenants or the performance of this Indenture; and
the
Company (to the extent that it may lawfully do so) hereby expressly waives
all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law
had been enacted.
ARTICLE
7
TRUSTEE
SECTION
7.01 Duties
of Trustee.
(a) If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
the
rights and powers vested in it by this Indenture and use the same degree of
care
and skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
36
(b) Except
during the continuance of an Event of Default:
(1) the
Trustee need perform only those duties that are specifically set forth in this
Indenture and no others; and
(2) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the
Trustee, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but need
not
confirm or investigate the accuracy of mathematical calculations or other facts
stated therein.
This
Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act or its own willful misconduct, except
that:
(1) this
paragraph (c) does not limit the effect of paragraph (b) of this Section
7.01;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to Section
6.05.
Subparagraphs
(c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and
315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are
hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject
to
paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The
Trustee may refuse to perform any duty or exercise any right or power or extend
or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee (acting in any capacity
hereunder) shall be under no liability for interest on any money received by
it
hereunder unless otherwise agreed in writing with the Company.
37
SECTION
7.02 Rights
of Trustee.
Subject
to its duties and responsibilities under the provisions of Section 7.01, and,
except as expressly excluded from this Indenture pursuant to said Section 7.01,
subject also to its duties and responsibilities under the TIA:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(b) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officers’ Certificate;
(c) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(d) the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith which it believes to be authorized or within its
rights or powers conferred under this Indenture;
(e) the
Trustee may consult with counsel selected by it and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(f) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of
the
Holders, pursuant to the provisions of this Indenture, unless such Holders
shall
have offered to the Trustee security or indemnity satisfactory to it against
the
costs, expenses and liabilities which may be incurred therein or
thereby;
(g) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a resolution of the Board of
Directors;
(h) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at
the
sole cost of the Company and shall incur no liability or additional liability
of
any kind by reason of such inquiry or investigation;
38
(i) the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture;
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, the Trustee in each of its capacities (including
non-trustee capacities) hereunder, and to each agent, custodian and other Person
employed to act hereunder, and such rights, privileges, protections, immunities
and benefits shall survive any termination of this Agreement or resignation
or
replacement of the Trustee.
(k) the
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
SECTION
7.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or its Affiliates with
the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
Conversion Agent or co-registrar may do the same with like rights. However,
the
Trustee must comply with Sections 7.10 and 7.11.
SECTION
7.04 Trustee’s
Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities, it shall not be accountable for the Company’s use or
application of the proceeds from the Securities, it shall not be responsible
for
any statement in the registration statement for the Securities under the
Securities Act or in the Indenture or the Securities (other than its certificate
of authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION
7.05 Notice
of Defaults.
If a
Default occurs and if it is known to the Trustee, the Trustee shall give to
each
Securityholder notice of the Default within 90 days after it occurs unless
such
Default shall have been cured or waived before the giving of such notice. Except
in the case of a Default described in Section 6.01(1) or (2), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in
good faith determines that withholding the notice is in the interests of
Securityholders. The second sentence of this Section 7.05 shall be in lieu
of
the proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA. The Trustee shall not
be
deemed to have knowledge of a Default unless a Responsible Officer of the
Trustee has received written notice of such Default.
SECTION
7.06 Reports
by Trustee to Holders.
Within
60 days after each March 15 beginning with the March 15 following the date
of
this Indenture, the Trustee shall mail to each Securityholder a brief report
dated as of such March 15 that complies with TIA Section
39
A
copy of
each report at the time of its mailing to Securityholders shall be filed with
the SEC and each securities exchange, if any, on which the Securities are
listed. The Company agrees to promptly notify the Trustee whenever the
Securities become listed on any securities exchange and of any delisting
thereof.
SECTION
7.07 Compensation
and Indemnity.
The
Company agrees:
(a) to
pay to
the Trustee from time to time such reasonable compensation as the Company and
the Trustee shall from time to time agree in writing for all services rendered
by it hereunder (which compensation shall not be limited (to the extent
permitted by law) by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture or otherwise related to services provided by
the
Trustee to the extent reasonably related thereto(including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), or other request of the Company, except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
and
(c) to
indemnify the Trustee or any predecessor Trustee and their agents, officers,
directors, and employees for, and to hold them harmless against, any loss,
damage, claim, liability, cost or expense (including reasonable attorney’s fees
and expenses and taxes (other than taxes based upon, measured by or determined
by the income of the Trustee)) incurred without negligence or bad faith on
its
part, arising out of or in connection with the acceptance or administration
of
this trust or other matters related to this Agreement or the Securities,
including the reasonable costs and expenses of defending itself against any
claim (whether asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its powers
or
duties hereunder.
To
secure
the Company’s payment obligations in this Section 7.07, the Holders shall have
been deemed to have granted to the Trustee a lien prior to the Securities on
all
money or property held or collected by the Trustee, except that held in trust
to
pay the Principal Amount at Maturity, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price, contingent interest or interest,
if
any, as the case may be, on particular Securities.
The
Company’s payment obligations pursuant to this Section 7.07 shall survive the
discharge of this Indenture and the resignation or removal of the Trustee.
When
the Trustee incurs expenses after the occurrence of a Default specified in
Section 6.01(6) or (7), the expenses including the reasonable charges and
expenses of its counsel, are intended to constitute expenses of administration
under any Bankruptcy Law.
40
SECTION
7.08 Replacement
of Trustee.
The
Trustee may resign by so notifying the Company; provided, however, no such
resignation shall be effective until a successor Trustee has accepted its
appointment pursuant to this Section 7.08; provided that the Company agrees
to
take commercially reasonable actions to engage a successor Trustee within 90
days following such resignation. The Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
remove the Trustee by so notifying the Trustee and the Company. The Company
shall remove the Trustee if:
(1) the
Trustee fails to comply with Section 7.10;
(2) the
Trustee is adjudged bankrupt or insolvent;
(3) a
receiver or public officer takes charge of the Trustee or its property;
or
(4) the
Trustee otherwise becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company shall promptly appoint, by resolution of its Board
of Directors, a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company satisfactory in form and substance to the
retiring Trustee and the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders.
The
retiring Trustee shall promptly transfer all property held by it as Trustee
to
the successor Trustee, subject to the lien provided for in Section
7.07.
If
a
successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of
a
majority in aggregate Principal Amount at Maturity of the Securities at the
time
outstanding may petition any court of competent jurisdiction at the expense
of
the Company for the appointment of a successor Trustee.
If
the
Trustee fails to comply with Section 7.10, any Securityholder may petition
any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
SECTION
7.09 Successor
Trustee by Merger.
If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
SECTION
7.10 Eligibility;
Disqualification.
The
Trustee shall at all times satisfy the requirements of TIA Sections 310(a)(1)
and 310(b). The Trustee (or its parent holding company) shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall prevent
the
41
SECTION
7.11 Preferential
Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE
8
DISCHARGE
OF INDENTURE
SECTION
8.01 Discharge
of Liability on Securities.
When
(i) the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company or any
Guarantor irrevocably deposits with the Trustee, the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) or the Conversion Agent,
cash
or Common Stock sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if
in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand
of
the Company accompanied by an Officers’ Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION
8.02 Repayment
to the Company.
The
Trustee and the Paying Agent shall return to the Company upon written request
any money or securities, if any, held by them for the payment of any amount
with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities, if any, must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person and the Trustee and the Paying Agent shall have no further liability
to
the Securityholders with respect to such money or securities, if any, for that
period commencing after the return thereof.
ARTICLE
9
AMENDMENTS
SECTION
9.01 Without
Consent of Holders.
The
Company and the Trustee may amend this Indenture or the Securities without
the
consent of any Securityholder:
(1) to
cure
any ambiguity, omission, defect or inconsistency;
(2) to
comply
with Article 5 or Section 11.14;
(3) to
secure
the Company’s obligations under the Securities and this Indenture;
42
(4) to
add to
the Company’s covenants for the benefit of the Securityholders or to surrender
any right or power conferred upon the Company;
(5) to
make
any change to comply with the TIA, or any amendment thereto, or to comply with
any requirement of the SEC in connection with the qualification of the Indenture
under the TIA, or as necessary in connection with the registration of the
Securities under the Securities Act; or
(6) to
make
any change that does not adversely affect the rights of any Holders (it being
understood that any amendment described in clause (1) above made solely to
conform this Indenture to the final offering memorandum provided to investors
in
connection with the initial offering of the Securities will be deemed not to
adversely affect the rights or interests of Holders).
SECTION
9.02 With
Consent of Holders.
With the written consent of the Holders of at least a majority in
aggregate Principal Amount at Maturity of the Securities at the time
outstanding, the Company and the Trustee may amend this Indenture or the
Securities. However, without the consent of each Securityholder affected, an
amendment to this Indenture or the Securities may not:
(1) change
the provisions of this Indenture that relate to modifying or amending this
Indenture;
(2) make
any
change in the manner or rate of accrual in connection with Original Issue
Discount, make any change in the manner of calculation of, or that adversely
affects the right to receive, contingent interest, reduce the rate of interest
referred to in Section 10.01 upon the occurrence of a Tax Event, or extend
the
time for payment of Original Issue Discount or interest, if any, on any
Security;
(3) reduce
the Principal Amount at Maturity, Restated Principal Amount or the Issue Price
of or change the Stated Maturity of any Security;
(4) reduce
the Redemption Price or Purchase Price of any Security;
(5) make
any
Security payable in money or securities other than that stated in the
Security;
(6) make
any
change in Section 6.04, Section 6.07 or this Section 9.02, except to increase
any percentage set forth therein;
(7) make
any
change that adversely affects the right to convert any Security;
(8) make
any
change that adversely affects the right to require the Company to purchase
the
Securities in accordance with the terms thereof and this Indenture;
(9) impair
the right to institute suit for the enforcement of any payment with respect
to,
or conversion of, the Securities; or
43
(10) release
any Guarantor from any of its obligations under its Guarantee other than in
accordance with the terms of this Indenture.
It
shall
not be necessary for the consent of the Holders under this Section 9.02 to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After
an
amendment under this Section 9.02 becomes effective, the Company shall mail
to
each Holder a notice briefly describing the amendment.
SECTION
9.03 Compliance
with Trust Indenture Act.
The Company shall ensure that every supplemental indenture executed
pursuant to this Article shall comply with the TIA.
SECTION
9.04 Revocation
and Effect of Consents, Waivers and Actions.
Until an amendment, consent, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion
of
the Security that evidences the same obligation as the consenting Holder’s
Security, even if notation of the amendment, consent, waiver or other action
is
not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent as to such Holder’s Security or portion of the Security if
the Trustee receives the notice of revocation before the date as of which the
amendment, consent, waiver or action is made effective. After an amendment,
consent, waiver or action becomes effective, it shall bind every
Securityholder.
SECTION
9.05 Notation
on or Exchange of Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Board of
Directors, to any such supplemental indenture may be prepared and executed
by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
SECTION
9.06 Trustee
to Sign Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized pursuant to
this Article 9 if the amendment contained therein does not adversely affect
the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the provisions
of Section 7.01) shall be fully protected in relying upon, in addition to the
documents required by Section 14.04, an Officers’ Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
SECTION
9.07 Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
44
ARTICLE
10
SPECIAL
TAX EVENT CONVERSION
SECTION
10.01 Optional
Conversion to Semiannual Coupon Note Upon Tax Event.
From and after (i) the date of the occurrence of a Tax Event (the
“Tax
Event Date”)
and
(ii) the date the Company exercises the option provided for in this Section
10.01, whichever is later (the “Option
Exercise Date”),
at
the option of the Company, interest in lieu of future Original Issue Discount
shall accrue at the rate specified in paragraph 11(a) of the Securities on
a
restated principal amount per $1,000 original Principal Amount at Maturity
(the
“Restated
Principal Amount”)
equal
to the Issue Price plus Original Issue Discount accrued through the Option
Exercise Date and shall be payable semiannually on April 3 and October 3 of
each
year (each an “Interest
Payment Date”)
to
holders of record at the close of business on March 19 or September 18 (each
a
“Regular
Record Date”)
immediately preceding such Interest Payment Date. Interest will be computed
on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date on which interest has been paid or, if no interest
has
been paid, from the Option Exercise Date. Within 15 days of the occurrence
of a
Tax Event, the Company shall deliver a written notice of such Tax Event by
facsimile and first-class mail to the Trustee and within 15 days of its exercise
of such option the Company shall deliver a written notice of the Option Exercise
Date by facsimile and first-class mail to the Trustee and by first class mail
to
the Holders of the Securities. From and after the Option Exercise Date, (i)
the
Company shall be obligated to pay at Stated Maturity, in lieu of the Principal
Amount at Maturity of a Security, the Restated Principal Amount thereof plus
accrued and unpaid interest with respect to any Security, (ii) “Issue
Price and accrued Original Issue Discount,”
“Issue
Price plus Original Issue Discount”
or
similar words, as used herein, shall mean Restated Principal Amount plus accrued
and unpaid interest with respect to any Security and (iii) contingent interest
shall cease to accrue on the Securities. Securities authenticated and delivered
after the Option Exercise Date may, and shall if required by the Trustee, bear
a
notation in a form approved by the Trustee as to the conversion of the
Securities to semiannual coupon notes. No other changes to the Indenture shall
result as a result of the events described in this Section 10.01.
ARTICLE
11
CONVERSION
SECTION
11.01 Conversion
Privilege.
A
Holder of a Security may convert such Security into cash, and, if applicable,
Common Stock, at any time after the Issue Date in accordance with the provisions
below and in paragraph 9 of the Securities. Subject to the cash settlement
procedures set forth below, the number of shares of Common Stock issuable upon
conversion of a Security per $1,000 of Principal Amount at Maturity thereof
(the
“Conversion
Rate”)
shall
be that set forth in paragraph 9 in the Securities, subject to adjustment as
herein set forth.
A
Holder
may convert a portion of the Principal Amount at Maturity of a Security if
the
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
45
Subject
to certain exceptions, if Securities are tendered for conversion, the value
(the
“Conversion
Value”)
of the
cash and shares of Common Stock, if any, to be received by a holder converting
$1,000 principal amount at maturity of the Securities will be determined by
multiplying the applicable Conversion Rate by the average of the Sale Prices
of
the Common Stock for the ten consecutive trading days beginning on the second
trading day immediately following the day on which the Securities are submitted
for conversion (the “Cash
Settlement Averaging Period”).
Upon
conversion of Securities, the Conversion Value will be delivered to
Securityholders as follows:
(1) an
amount
in cash (the “Principal
Return”)
equal
to the lesser of (a) the Conversion Value of each Security to be converted
and
(b) the Accreted Principal Amount of each Security to be converted,
(2) if
the
Conversion Value of the Securities to be converted is greater than the accreted
principal amount, an amount in whole shares (the “Net
Shares”),
calculated as described below, equal to such Conversion Value less the Principal
Return (the “Net
Share Amount”),
and
(3) an
amount
in cash in lieu of any fractional shares of common stock.
The
number of Net Shares to be paid will be equal to the greater of (i) zero and
(ii) the sum of, for each trading day during the Cash Settlement Averaging
Period, the quotient of (A) 10% of the difference between (1) the product of
the
Conversion Rate in effect and the Sale Price of the Common Stock for such day;
and (2) the Accreted Principal Amount of the Securities to be converted as
of
the conversion date, divided by (B) the Sale Price of the Common
Stock.
The
“Accreted
Principal Amount”
with
respect to any Securities means, at any date of determination, the sum of:
(1)
the initial principal amount of the Security upon issuance; and (2 ) the accrued
Original Issue Discount that has been accreted to the principal amount of the
Security.
The
“Sale
Price”
of
the
Common Stock on any date means the closing per share sale price (or if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average
ask
prices) on such date as reported in composite transactions for the principal
United States securities exchange on which the common stock is traded or, if
the
common stock is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by Pink Sheets, LLC. In the absence of a
quotation, we will determine the sale price on the basis of such quotations
as
we consider appropriate.
“Average
Sale Price”
means
the average of the Sale Prices of the Common Stock for the shorter
of
46
(i) 30
consecutive trading days ending on the last full trading day prior to the Time
of Determination with respect to the rights, warrants or options or distribution
in respect of which the Average Sale Price is being calculated, or
(ii) the
period (x) commencing on the date next succeeding the first public announcement
of (a) the issuance of rights, warrants or options or (b) the distribution,
in
each case, in respect of which the Average Sale Price is being calculated and
(y) proceeding through the last full trading day prior to the Time of
Determination with respect to the rights, warrants or options or distribution
in
respect of which the Average Sale Price is being calculated (excluding days
within such period, if any, which are not trading days), or
(iii) the
period, if any, (x) commencing on the date next succeeding the Ex-Dividend
Time
with respect to the next preceding (a) issuance of rights, warrants or options
or (b) distribution, in each case, for which an adjustment is required by the
provisions of Section 11.06(4), 11.07 or 11.08 and (y) proceeding through the
last full trading day prior to the Time of Determination with respect to the
rights, warrants or options or distribution in respect of which the Average
Sale
Price is being calculated (excluding days within such period, if any, which
are
not trading days).
In
the
event that the Ex-Dividend Time (or in the case of a subdivision, combination
or
reclassification, the effective date with respect thereto) with respect to
a
dividend, subdivision, combination or reclassification to which Section
11.06(1), (2), (3) or (5) applies occurs during the period applicable for
calculating “Average
Sale Price”
pursuant to the definition in the preceding sentence, “Average
Sale Price”
shall
be calculated for such period in a manner determined by the Board of Directors
to reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the Common Stock during such
period.
“Time
of Determination”
means
the time and date of the earlier of (i) the determination of stockholders
entitled to receive rights, warrants or options or a distribution, in each
case,
to which Section 11.07 or 11.08 applies and (ii) the time (“Ex-Dividend
Time”)
immediately prior to the commencement of “ex-dividend”
trading
for such rights, warrants or options or distribution on the New York Stock
Exchange or such other principal national or regional exchange or market on
which the Common Stock is then listed or quoted.
SECTION
11.02 Conversion
Procedure.
To
convert a Security a Holder must satisfy the requirements in paragraph 9 of
the
Securities. The date on which the Holder satisfies all those requirements is
the
conversion date (the “Conversion
Date”).
As
soon as practicable after the Conversion Date, the Company shall deliver to
the
Holder, through the Conversion Agent, a certificate for the number of full
shares of Common Stock issuable upon the conversion and cash in lieu of any
fractional share determined pursuant to Section 11.03. The person in whose
name
the certificate is registered shall be treated as a stockholder of record on
and
after the Conversion Date; provided, however, that no surrender of a Security
on
any date when the stock transfer books of the Company shall be closed shall
be
effective to constitute the person or persons entitled to receive the shares
of
Common Stock upon such conversion as the record holder or holders of such shares
of Common Stock on such date, but such surrender shall be
47
effective
to constitute the person or persons entitled to receive such shares of Common
Stock as the record holder or holders thereof for all purposes at the close
of
business on the next succeeding day on which such stock transfer books are
open;
such conversion shall be at the Conversion Rate in effect on the date that
such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed. Upon conversion of a Security,
such
person shall no longer be a Holder of such Security.
No
payment or adjustment will be made for dividends on, or other distributions
with
respect to, any Common Stock except as provided in this Article 11. On
conversion of a Security, the greater of that portion of accrued Original Issue
Discount (or interest, if the Company has exercised its option provided for
in
Section 10.01) or Tax Original Issue Discount attributable to the period from
the Issue Date (or, if the Company has exercised the option provided for in
Section 10.01, the later of (x) the date of such exercise and (y) the date
on
which interest was last paid) of the Security through but not including the
Conversion Date and (except as provided below) accrued contingent interest,
if
any, with respect to the converted Security shall not be cancelled, extinguished
or forfeited, but rather shall be deemed to be paid in full to the Holder
thereof through delivery of the Common Stock (together with the cash payment,
if
any, in lieu of fractional shares) in exchange for the Security being converted
pursuant to the provisions hereof; and the fair market value of such shares
of
Common Stock (together with any such cash payment in lieu of fractional shares)
shall be treated as issued, to the extent thereof, first in exchange for the
greater of Original Issue Discount (or interest, if the Company has exercised
its option provided for in Section 10.01) or Tax Original Issue Discount accrued
through the Conversion Date and accrued contingent interest, and the balance,
if
any, of such fair market value of such Common Stock (and any such cash payment)
shall be treated as issued in exchange for the Issue Price of the Security
being
converted pursuant to the provisions hereof.
If
the
Holder converts more than one Security at the same time, the number of shares
of
Common Stock issuable upon the conversion shall be based on the total Principal
Amount at Maturity of the Securities converted.
If
the
last day on which a Security may be converted is a Legal Holiday, the Security
may be surrendered on the next succeeding day that is not a Legal
Holiday.
Upon
surrender of a Security that is converted in part, the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder, a new Security
in
an authorized denomination equal in Principal Amount at Maturity to the
unconverted portion of the Security surrendered.
SECTION
11.03 Fractional
Shares.
The Company will not issue a fractional share of Common Stock upon conversion
of
a Security. Instead, the Company will deliver cash for the current market value
of the fractional share. The current market value of a fractional share shall
be
determined, to the nearest 1/1,000th of a share, by multiplying the Sale Price
of the Common Stock, on the last trading day prior to the Conversion Date,
of a
full share by the fractional amount and rounding the product to the nearest
whole cent.
SECTION
11.04 Taxes
on Conversion.
If a Holder converts a Security, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of
48
SECTION
11.05 Company
to Provide Stock.
The Company shall, prior to issuance of any Securities under this Article 11,
and from time to time as may be necessary, reserve out of its authorized but
unissued Common Stock a sufficient number of shares of Common Stock to permit
the conversion of the Securities.
All
shares of Common Stock delivered upon conversion of the Securities shall be
newly issued shares or treasury shares, shall be duly and validly issued and
fully paid and nonassessable and shall be free from preemptive rights and free
of any lien or adverse claim created by the Company.
The
Company will endeavor promptly to comply with all federal and state securities
laws regulating the offer and delivery of shares of Common Stock upon conversion
of Securities, if any, and will list or cause to have quoted such shares of
Common Stock on each national securities exchange or in the over-the-counter
market or such other market on which the Common Stock is then principally listed
or quoted.
SECTION
11.06 Adjustment
for Change In Capital Stock.
If,
after the Issue Date of the Securities, the Company:
(1) pays
a
dividend or makes a distribution on its Common Stock in shares of its Common
Stock;
(2) subdivides
its outstanding shares of Common Stock into a greater number of
shares;
(3) combines
its outstanding shares of Common Stock into a smaller number of
shares;
(4) pays
a
dividend or makes a distribution on its Common Stock in shares of its Capital
Stock (other than Common Stock or rights, warrants or options for its Capital
Stock); or
(5) issues
by
reclassification of its Common Stock any shares of its Capital Stock (other
than
rights, warrants or options for its Capital Stock),
then
the
conversion privilege and the Conversion Rate in effect immediately prior to
such
action shall be adjusted so that the Holder of a Security thereafter converted
may receive the number of shares of Capital Stock of the Company which such
Holder would have owned immediately following such action if such Holder had
converted the Security immediately prior to such action.
49
The
adjustment shall become effective immediately after the record date in the
case
of a dividend or distribution and immediately after the effective date in the
case of a subdivision, combination or reclassification.
If
after
an adjustment a Holder of a Security upon conversion of such Security may
receive shares of two or more classes of Capital Stock of the Company, the
Conversion Rate shall thereafter be subject to adjustment upon the occurrence
of
an action taken with respect to any such class of Capital Stock as is
contemplated by this Article 11 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article 11.
SECTION
11.07 Adjustment
for Rights Issue.
If after the Issue Date of the
Securities, the Company distributes any rights, warrants or options to all
holders of its Common Stock entitling them, for a period expiring within 60
days
after the record date for such distribution, to purchase shares of Common Stock
at a price per share less than the Sale Price of the Common Stock as of the
Time
of Determination, the Conversion Rate shall be adjusted in accordance with
the
formula:
R’
=
R
x (O
+
N)
(O
+ (N x
P)/M)
where:
R’
=
the
adjusted Conversion Rate.
R
= the
current Conversion Rate.
O
= the
number of shares of Common Stock outstanding on the record date for the
distribution to which this Section 11.07 is being applied.
N
= the
number of additional shares of Common Stock offered pursuant to the
distribution.
P
= the
offering price per share of the additional shares.
M
= the
Average Sale Price, minus, in the case of (i) a distribution to which Section
11.06(4) applies or (ii) a distribution to which Section 11.08 applies, for
which, in each case, (x) the record date shall occur on or before the
record date for the distribution to which this Section 11.07 applies and (y)
the
Ex-Dividend Time shall occur on or after the date of the Time of Determination
for the distribution to which this Section 11.07 applies, the fair market value
(on the record date for the distribution to which this Section 11.07 applies)
of
the
(1) Capital
Stock of the Company distributed in respect of each share of Common Stock in
such Section 11.06(4) distribution and
(2) assets
of
the Company or debt securities or any rights, warrants or options to purchase
securities of the Company distributed in respect of each share of Common Stock
in such Section 11.08 distribution.
50
The
Board
of Directors shall determine fair market values for the purposes of this
Section 11.07.
The
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive the rights, warrants or
options to which this Section 11.07 applies. If all of the shares of Common
Stock subject to such rights, warrants or options have not been issued when
such
rights, warrants or options expire, then the Conversion Rate shall promptly
be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made
on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No
adjustment shall be made under this Section 11.07 if the application of the
formula stated above in this Section 11.07 would result in a value of R’ that is
equal to or less than the value of R.
SECTION
11.08 Adjustment
for Other Distributions.
(a) If,
after
the Issue Date of the Securities, the Company distributes to all holders of
its
Common Stock any of its assets excluding distributions of Capital Stock or
equity interests referred to in Section 11.08(b), or debt securities or any
rights, warrants or options to purchase securities of the Company (including
securities or cash, but excluding (x) distributions of Capital Stock referred
to
in Section 11.06 and distributions of rights, warrants or options referred
to in
Section 11.07 and (y) cash dividends or other cash distributions that are paid
out of consolidated current net earnings or earnings retained in the business
as
shown on the books of the Company unless such cash dividends or other cash
distributions are Extraordinary Cash Dividends) the Conversion Rate shall be
adjusted, subject to the provisions of Section 11.08(c), in accordance with
the
formula:
R’
= R
x
M
M
-
F
where:
R’
=
the
adjusted Conversion Rate.
R
= the
current Conversion Rate.
M
= the
Average Sale Price, minus, in the case of a distribution to which Section
11.06(4) applies, for which (i) the record date shall occur on or before the
record date for the distribution to which this Section 11.08(a) applies and
(ii)
the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.08(a) applies,
the
fair market value (on the record date for the distribution to which this Section
11.08(a) applies) of any Capital Stock of the Company distributed in respect
of
each share of Common Stock in such Section 11.06(4) distribution.
F
= the
fair market value (on the record date for the distribution to which this Section
11.08(a) applies) of the assets, securities, rights, warrants or options to
be
distributed in respect of each share of Common Stock in the distribution to
which this Section 11.08(a) is being
51
The
Board
of Directors shall determine fair market values for the purposes of this Section
11.08(a).
The
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive the distribution to which
this
Section 11.08(a) applies.
For
purposes of this Section 11.08(a), the term “Extraordinary
Cash Dividend”
shall
mean any cash dividend with respect to the Common Stock the amount of which,
together with the aggregate amount of cash dividends on the Common Stock to
be
aggregated with such cash dividend in accordance with the provisions of this
paragraph, equals or exceeds the threshold percentage set forth in item (i)
below. For purposes of item (i) below, the “Measurement
Period”
with
respect to a cash dividend on the Common Stock shall mean the 365 consecutive
day period ending on the date prior to the Ex-Dividend Time with respect to
such
cash dividend, and the “Relevant
Cash Dividends”
with
respect to a cash dividend on the Common Stock shall mean the cash dividends
on
the Common Stock with Ex-Dividend Times occurring in the Measurement
Period.
(i) If,
upon
the date prior to the Ex-Dividend Time with respect to a cash dividend on the
Common Stock, the aggregate amount of such cash dividend together with the
amounts of all Relevant Cash Dividends equals or exceeds on a per share basis
the sum of (a) 5% of the Sale Price of the Common Stock on the last trading
day
preceding the date of declaration by the Board of Directors of the cash dividend
with respect to which this provision is being applied, and (b) the quotient
of
the amount of any cash interest paid on a Security during the Ex-Dividend
Measurement Period by the conversion rate in effect on the payment date of
such
applicable interest payment, then such cash dividend together with all Relevant
Cash Dividends, shall be deemed to be an Extraordinary Cash Dividend and for
purposes of applying the formula set forth above in this Section 11.08(a),
the
value of “F”
shall
be equal to (y) the aggregate amount of such cash dividend together with the
amount of all Relevant Cash Dividends, minus (z) the aggregate amount of all
Relevant Cash Dividends for which a prior adjustment in the Conversion Rate
was
previously made under this Section 11.08(a).
In
making
the determinations required by item (i) above, the amount of cash dividends
paid
on a per share basis and the amount of any Relevant Cash Dividends specified
in
item (i) above, shall be appropriately adjusted to reflect the occurrence during
such period of any event described in Section 11.06.
(b) If,
after
the Issue Date of the Securities, the Company pays a dividend or makes a
distribution to all holders of its Common Stock consisting of Capital Stock
of
any class or series, or similar equity interests, of or relating to a Subsidiary
or other business unit of the Company, the Conversion Rate shall be adjusted
in
accordance with the formula:
52
R’
=
R x
(1
+
F/M)
where:
R’
=
the
adjusted Conversion Rate.
R
= the
current Conversion Rate.
M
= the
average of the Post-Distribution Prices of the Common Stock for the 10 trading
days commencing on and including the fifth trading day after the date on which
“ex-dividend
trading”
commences for such dividend or distribution on the principal United States
exchange or market which such securities are then listed or quoted (the
“Ex-Dividend
Date”).
F
= the
fair market value of the securities distributed in respect of each share of
Common Stock for which this Section 11.08(b) shall mean the number of securities
distributed in respect of each share of Common Stock multiplied by the average
of the Post-Distribution Prices of those securities distributed for the 10
trading days commencing on and including the fifth trading day after the
Ex-Dividend Date.
"Post-Distribution
Price"
of
Capital Stock or any similar equity interest on any date means the closing
per
unit sale price (or, if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average of the
average bid and the average ask prices) on such date for trading of such units
on a "when
issued"
basis
without due bills (or similar concept) as reported in the composite transactions
for the principal United States securities exchange on which such Capital Stock
or equity interest is traded or, if the Capital Stock or equity interest, as
the
case may be, is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by the National Quotation Bureau Incorporated;
provided that if on any date such units have not traded on a "when
issued"
basis,
the Post-Distribution Price shall be the closing per unit sale price (or, if
no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average
ask
prices) on such date for trading of such units on a "regular
way"
basis
without due bills (or similar concept) as reported in the composite transactions
for the principal United States securities exchange on which such Capital Stock
or equity interest is traded or, if the Capital Stock or equity interest, as
the
case may be, is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by the National Quotation Bureau Incorporated.
In
the absence of such quotation, the Company shall be entitled to determine the
Post-Distribution Price on the basis of such quotations which reflect the
post-distribution value of the Capital Stock or equity interests as it considers
appropriate.
(c) In
the
event that, with respect to any distribution to which Section 11.08(a) would
otherwise apply, the difference “M-F” as defined in the formula set forth in
Section 11.08(a) is less than $1.00 or “F” is equal to or greater than “M”, then
the adjustment provided by Section 11.08(a) shall not be made and in lieu
thereof the provisions of Section 11.14 shall apply to such
distribution.
53
SECTION
11.09 When
Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the adjustment would
require an increase or decrease of at least 1% in the Conversion Rate. Any
adjustments that are not made shall be carried forward and taken into account
in
any subsequent adjustment.
All
calculations under this Article 11 shall be made to the nearest cent or to
the
nearest 1/1,000th of a share, as the case may be.
SECTION
11.10 When
No Adjustment Required.
No adjustment need be made for a transaction referred to in Section 11.06,
11.07, 11.08 or 11.14 if Securityholders are to participate in the transaction
on a basis and with notice that the Board of Directors determines to be fair
and
appropriate in light of the basis and notice on which holders of Common Stock
participate in the transaction. Such participation by Securityholders may
include participation upon conversion provided that an adjustment shall be
made
at such time as the Securityholders are no longer entitled to
participate.
No
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest.
No
adjustment need be made for a change in the par value or no par value of the
Common Stock.
To
the
extent the Securities become convertible pursuant to this Article 11 into cash,
no adjustment need be made thereafter as to the cash. Interest will not accrue
on the cash.
SECTION
11.11 Notice
of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment. The Company shall file with the
Trustee and the Conversion Agent such notice and a certificate from the
Company’s independent public accountants briefly stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct. Neither the Trustee nor any Conversion
Agent shall be under any duty or responsibility with respect to any such
certificate except to exhibit the same to any Holder desiring inspection
thereof.
SECTION
11.12 Voluntary
Increase.
The Company from time to time may increase the Conversion Rate by any
amount for any period of time. Whenever the Conversion Rate is increased, the
Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice of the increase. The Company shall mail the notice
at
least 15 days before the date the increased Conversion Rate takes effect. The
notice shall state the increased Conversion Rate and the period it will be
in
effect.
A
voluntary increase of the Conversion Rate does not change or adjust the
Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08.
SECTION
11.13 Notice
of Certain Transactions.
If:
54
(1) the
Company takes any action that would require an adjustment in the Conversion
Rate
pursuant to Section 11.06, 11.07 or 11.08 (unless no adjustment is to occur
pursuant to Section 11.10); or
(2) the
Company takes any action that would require a supplemental indenture pursuant
to
Section 11.14; or
(3) there
is
a liquidation or dissolution of the Company;
then
the
Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect
in it
shall not affect the validity of the transaction.
SECTION
11.14 Reorganization
of Company; Special Distributions.
If the
Company is a party to a transaction subject to Section 5.01 (other than a sale
of all or substantially all of the assets of the Company in a transaction in
which the holders of Common Stock immediately prior to such transaction do
not
receive securities, cash or other assets of the Company or any other person)
or
a merger or binding share exchange which reclassifies or changes the outstanding
Common Stock of the Company, the person obligated to deliver securities, cash
or
other assets upon conversion of Securities shall enter into a supplemental
indenture. If the issuer of securities deliverable upon conversion of Securities
is an Affiliate of the successor Company, that issuer shall join in the
supplemental indenture.
The
supplemental indenture shall provide that the Holder of a Security may convert
it into the kind and amount of securities, cash or other assets which such
Holder would have received immediately after the consolidation, merger, binding
share exchange or transfer if such Holder had converted the Security immediately
before the effective date of the transaction, assuming (to the extent
applicable) that such Holder (i) was not a constituent person or an Affiliate
of
a constituent person to such transaction; (ii) made no election with respect
thereto; and (iii) was treated alike with the plurality of non-electing Holders.
The supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Article 11. The successor Company shall mail to Securityholders a notice briefly
describing the supplemental indenture.
If
this
Section applies, neither Section 11.06 nor 11.07 applies.
If
the
Company makes a distribution to all holders of its Common Stock of any of its
assets, or debt securities or any rights, warrants or options to purchase
securities of the Company that, but for the provisions of Section 11.08(c),
would otherwise result in an adjustment in the Conversion Rate pursuant to
the
provisions of Section 11.08, then, from and after the record date for
determining the holders of Common Stock entitled to receive the distribution,
a
Holder of a Security that converts such Security in accordance with the
provisions of this Indenture shall upon such conversion be entitled to receive,
in addition to the shares of Common Stock into which the Security is
convertible, the kind and amount of securities, cash or
55
SECTION
11.15 Company
Determination Final.
Any
determination that the Company or the Board of Directors must make pursuant
to
Section 11.03, 11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is
conclusive.
SECTION
11.16 Trustee’s
Adjustment Disclaimer.
The
Trustee has no duty to determine when an adjustment under this Article 11 should
be made, how it should be made or what it should be. The Trustee has no duty
to
determine whether a supplemental indenture under Section 11.14 need be entered
into or whether any provisions of any supplemental indenture are correct. The
Trustee shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company’s failure to
comply with this Article 11. Each Conversion Agent shall have the same
protection under this Section 11.16 as the Trustee.
SECTION
11.17 Simultaneous
Adjustments.
In the
event that this Article 11 requires adjustments to the Conversion Rate under
more than one of Sections 11.06(4), 11.07 or 11.08, and the record dates for
the
distributions giving rise to such adjustments shall occur on the same date,
then
such adjustments shall be made by applying, first, the provisions of Section
11.06, second, the provisions of Section 11.08 and, third, the provisions of
Section 11.07.
SECTION
11.18 Successive
Adjustments.
After
an adjustment to the Conversion Rate under this Article 11, any subsequent
event
requiring an adjustment under this Article 11 shall cause an adjustment to
the
Conversion Rate as so adjusted.
SECTION
11.19 Rights
Issued in Respect of Common Stock Issued Upon Conversion.
Each
share of Common Stock issued upon conversion of Securities pursuant to this
Article 11 shall be entitled to receive the appropriate number of common stock
or preferred stock purchase rights, as the case may be (the “Rights”),
if
any, that all shares of Common Stock are entitled to receive and the
certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of
any
shareholder rights agreement adopted by the Company, as the same may be amended
from time to time (in each case, a “Rights
Agreement”).
Provided that such Rights Agreement requires that each share of Common Stock
issued by the Company (including those that might be issued upon conversion
of
Securities) at any time prior to the distribution of separate certificates
representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Article 11, there shall
not be any adjustment to the conversion privilege or Conversion Rate or any
other term or provision of the Securities as a result of the issuance of Rights,
the distribution of separate certificates representing the Rights, the exercise
or redemption of such Rights in accordance with any such Rights Agreement,
or
the termination or invalidation of such Rights.
56
ARTICLE
12
PAYMENT
OF INTEREST
SECTION
12.01 Interest
Payments.
Interest, if any, on any Security that is payable in cash, and is punctually
paid or duly provided for, on any applicable payment date shall be paid to
the
person in whose name that Security is registered at the close of business on
the
Regular Record Date or accrual date, as the case may be, for such interest
at
the office or agency of the Company maintained for such purpose. Each
installment of semiannual or contingent interest on any Security shall be paid
in same-day funds by transfer to an account maintained by the payee located
inside the United States, if the Trustee shall have received proper wire
transfer instructions from such payee not later than the related Regular Record
Date or accrual date, as the case may be, or, if no such instructions have
been
received, by check drawn on a bank in New York City mailed to the payee at
its
address set forth on the Registrar’s books. In the case of a permanent Global
Security, semiannual or contingent interest payable on any applicable payment
date will be paid to the Depositary, with respect to that portion of such
permanent Global Security held for its account by Cede & Co. for the purpose
of permitting such party to credit the interest received by it in respect of
such permanent Global Security to the accounts of the beneficial owners
thereof.
SECTION
12.02 Defaulted
Interest.
Except
as otherwise specified with respect to the Securities, any interest on any
Security that is payable, but is not punctually paid or duly provided for,
within 30 days following any applicable payment date (herein called
“Defaulted
Interest”,
which
term shall include any accrued and unpaid interest that has accrued on such
defaulted amount in accordance with paragraph 1 of the Securities), shall
forthwith cease to be payable to the registered Holder thereof on the relevant
Regular Record Date or accrual date, as the case may be, by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its
election in each case, as provided in clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the persons
in
whose names the Securities are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed
in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment (which shall not be less than 20 days after such notice
is received by the Trustee), and at the same time the Company shall deposit
with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid
in respect of such Defaulted Interest or shall make arrangements satisfactory
to
the Trustee for such deposit 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 (the “Special
Record Date”)
for
the payment of such Defaulted Interest which shall be not more than 15 days
and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice
of
the proposed
57
payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities at his address as
it
appears on the list of Securityholders maintained pursuant to Section 2.05
not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the persons
in whose names the Securities are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The
Company may make payment of any Defaulted Interest on the Securities in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may
be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall
be
deemed practicable by the Trustee.
SECTION
12.03 Interest
Rights Preserved. Subject
to the foregoing provisions of this Article 12 and Section 2.06, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to semiannual and
contingent interest accrued and unpaid, and to accrue, which were carried by
such other Security.
ARTICLE
13
GUARANTEES
SECTION
13.01 Guarantees.
The
Guarantors jointly and severally, hereby absolutely, unconditionally and
irrevocably guarantee the Securities and obligations of the Company hereunder
and thereunder, and guarantee to each Holder of a Security authenticated and
delivered by the Trustee in accordance with the terms hereof, and to the Trustee
on behalf of such Holder, that: (a) the principal of and interest (including
contingent interest, if any on the Securities will be paid in full when due,
whether at Stated Maturity, by acceleration, redemption or otherwise (including,
without limitation, the amount that would become due but for the operation
of
the automatic stay under Section 362(a) of the Bankruptcy Law), together with
interest (including contingent interest, if any on the overdue principal, if
any, and interest on any overdue interest, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be paid in full or performed, all in accordance with the terms hereof
and
thereof; and (b) in case of any extension of time of payment or renewal of
any
Securities or of any such other obligations, the same shall be paid in full
when
due or performed in accordance with the terms of the extension or renewal,
whether at Stated Maturity, by acceleration redemption or
otherwise.
The
Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities
or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder
58
The
Guarantors hereby waive (to the extent permitted by law) the benefits of
diligence, presentment, demand for payment, filing of claims with a court in
the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or any other Person, protest, notice and
all demands whatsoever and covenants that the Guarantee of such Guarantor shall
not be discharged as to any Security except by complete performance of the
obligations contained in such Security, this Indenture and such Guarantee.
The
Guarantors acknowledge that the Guarantees are a guarantee of payment and not
of
collection.
The
Guarantors hereby agree that, in the event of a default in payment of principal
or interest including contingent interest, if any on such Security, whether
at
its Stated Maturity, by acceleration, redemption, purchase or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder
of
such Security, subject to the terms and conditions set forth in this Indenture,
directly against each of the Guarantors to enforce such Guarantor’s Guarantee
without first proceeding against the Company or any other Guarantor. The
Guarantor agrees that if, after the occurrence and during the continuance of
an
Event of Default, the Trustee or any of the Holders are prevented by applicable
law from exercising their respective rights to accelerate the maturity of the
Securities, to collect interest on the Securities, or to enforce or exercise
any
other right or remedy with respect to the Securities, such Guarantor shall
pay
to the Trustee for the account of the Holder, upon demand therefor, the amount
that would otherwise have been due and payable had such rights and remedies
been
permitted to be exercised by the Trustee or any of the Holders.
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company or any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or any Guarantor, any amount
paid by any of them to the Trustee or such Holder, the Guarantee of each of
the
Guarantors, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor further agrees that as between each Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) subject
to this Article Thirteen, the maturity of the obligations guaranteed hereby
may
be accelerated as provided in Article Six hereof for the purposes of the
Guarantee of such Guarantor notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligation
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of the Guarantee of such Guarantor.
Each
Guarantee shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Company for liquidation,
reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all
or
any significant part of the Company’s assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may
be,
if at any time payment and performance of the Securities are, pursuant to
applicable law,
59
rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
on the Securities, whether as a “voidable
preference”,
“fraudulent
transfer”
or
otherwise, all as though such payment or performance had not been made. In
the
event that any payment or any part thereof, is rescinded, reduced, restored
or
returned, for the purposes of the amounts due under the Guarantees, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned. The form of Guarantee is attached hereto as Exhibit
A-2.
SECTION
13.02 Severability.
In
case
any provision of any Guarantee shall be invalid, illegal or unenforceable,
the
validity, legality, and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
SECTION
13.03 Future
Subsidiaries.
If
the
Company or any of its Subsidiaries acquires or forms a Subsidiary organized
under the laws of the United States or any state or political subdivision
thereof or the District of Columbia, the Company will cause any such domestic
Subsidiary to (i) execute and deliver to the Trustee any amendment or supplement
to this Indenture in accordance with the provisions of Article Nine of this
Indenture pursuant to which such Subsidiary shall guarantee all of the
obligations on the Securities, whether for principal, interest (including
contingent interest), and interest accruing after the filing of, or which would
have accrued but for the filing of, a petition by or against the Company under
Bankruptcy Law, whether or not such interest is allowed as a claim after such
filing in any proceeding under such law), if any and other amounts due in
connection therewith (including any fees, expenses and indemnities), on a senior
unsecured basis and (ii) deliver to such Trustee an Opinion of Counsel
reasonably satisfactory to such Trustee to the effect that such amendment or
supplement has been duly executed and delivered by such domestic Subsidiary
and
is in compliance with the terms of this Indenture. Upon the execution of any
such amendment or supplement, the obligations of the Guarantors and any such
domestic Subsidiary under their respective Guarantees shall become joint and
several and each reference to the “Guarantor”
in
this
Indenture shall, be deemed to refer to all Guarantors, including such domestic
Subsidiary.
SECTION
13.04 Priority
of Guarantees.
The
Guarantee issued by any Guarantor shall be unsecured senior obligations of
such
Guarantor, ranking pari passu
with all
other existing and future senior unsecured indebtedness of such Guarantor,
if
any.
SECTION
13.05 Limitation
of Guarantors’ Liability.
Each
Guarantor and by its acceptance hereof each Holder confirms that it is the
intention of all such parties that the guarantee by the Guarantor pursuant
to
its Guarantee not constitute a fraudulent transfer or conveyance for purposes
of
the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law or the provisions
of
its local law relating to fraudulent transfer or conveyance. To effectuate
the
foregoing intention, the Holders and the Guarantors hereby irrevocably agree
that the
60
obligations
of such Guarantor under its Guarantee shall be limited to the maximum amount
that will not, after giving effect to all other contingent and fixed liabilities
of such Guarantor result in the obligations of such Guarantor under its
Guarantee constituting such fraudulent transfer or conveyance.
SECTION
13.06 Subrogation.
Each
Guarantor shall be subrogated to all rights of Holders against the Company
in
respect of any amounts paid by any Guarantor pursuant to the provisions of
Section 13.01; provided,
however,
that,
if an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon,
such
right of subrogation until all amounts then due and payable by the Company
under
this Indenture or the Securities shall have been paid in full.
SECTION
13.07 Reinstatement.
The
Guarantor hereby agrees (and each Person who becomes a Guarantor shall agree)
that the Guarantee provided for in Section 13.01 shall continue to be effective
or be reinstated, as the case may be, (a) if at any time, payment, or any part
thereof, of any obligations or interest thereon is rescinded or must otherwise
be restored by a Holder to the Company upon the bankruptcy or insolvency of
the
Company or any Guarantor and (b) at any time any Guarantor (and each Person
who
becomes a Guarantor) guarantees any indebtedness or obligations of the
Company.
SECTION
13.08 Release
of the Guarantor.
Concurrently
with the discharge of the Securities under Section 8.01, each Guarantor shall
be
released from all its obligations under its Guarantee under this Article
Thirteen.
So
long
as no Default exists or with notice or lapse of time or both, would exist,
the
Guarantee issued by any Guarantor shall be automatically and unconditionally
released and discharged upon (a) any sale, exchange, transfer to any Person
that
is not an Affiliate of the Company of all of the Capital Stock of such Guarantor
owned by the Company, which transaction is otherwise in compliance with the
Indenture or (b) any release or discharge of all guarantees by each of the
Guarantors of any indebtedness or obligations of the Company other than the
Guarantees of the Securities.
SECTION
13.09 Benefits
Acknowledged.
Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that its guarantee
and waivers pursuant to its Guarantee are knowingly made in contemplation of
such benefits.
61
ARTICLE
14
MISCELLANEOUS
SECTION
14.01 Trust
Indenture Act Controls.
If any
provision of this Indenture limits, qualifies, or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
SECTION
14.02 Notices.
Any
request, demand, authorization, notice, waiver, consent or communication shall
be in writing and delivered in person or delivery by courier guaranteeing
overnight delivery or mailed by first-class mail, postage prepaid, addressed
as
follows or transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile numbers:
if
to the
Company:
CBRL
Group, Inc.
P.O.
Box
787
Lebanon,
TN 37088
Telephone
No. (615) 443-9574
Facsimile
No. (615) 443-9818
Attention:
Chief Financial Officer
with
a
copy of any notice given pursuant to Article 6 to:
Baker,
Donelson, Bearman, Caldwell & Berkowitz, P.C.
Commerce
Center, Suite 1000
211
Commerce Street
Nashville,
TN 37201
Telephone
No. (615) 726-5763
Facsimile
No. (615) 744-5763
Attention:
Gary M. Brown
if
to the
Trustee:
Regions
Bank
Corporate
Trust Services
315
Deaderick Street, 2nd Floor
Nashville,
Tennessee 37237
Telephone
No. 615-770-4354
Facsimile
No. 615-770- 4350
Attention:
Corporate Trust Department
The
Company or the Trustee by notice given to the other in the manner provided
above
may designate additional or different addresses for subsequent notices or
communications.
62
Any
notice or communication given to a Securityholder shall be mailed to the
Securityholder, by first-class mail, postage prepaid, at the Securityholder’s
address as it appears on the registration books of the Registrar and shall
be
sufficiently given if so mailed within the time prescribed.
Failure
to mail a notice or communication to a Securityholder or any defect in it shall
not affect its sufficiency with respect to other Securityholders. If a notice
or
communication is mailed in the manner provided above, it is duly given, whether
or not received by the addressee.
If
the
Company mails a notice or communication to the Securityholders, it shall mail
a
copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or
co-registrar.
SECTION
14.03 Communication
by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company,
the
Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else
shall have the protection of TIA Section 312(c).
SECTION
14.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee if reasonably
requested:
(1) an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION
14.05 Statements
Required in Certificate or Opinion.
Each
Officers’ Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include to the extent
required by the Trustee:
(1) a
statement that each person making such Officers’ Certificate or Opinion of
Counsel has read such covenant or condition;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such Officers’ Certificate or
Opinion of Counsel are based;
(3) a
statement that, in the opinion of each such person, he has made such examination
or investigation as is necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and
(4) a
statement that, in the opinion of such person, such covenant or condition has
been complied with.
63
SECTION
14.06 Separability
Clause.
In case any provision in this Indenture or in the Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION
14.07 Rules
by Trustee, Paying Agent, Conversion Agent and Registrar.
The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar, Conversion Agent and the Paying Agent may make reasonable rules
for their functions.
SECTION
14.08 Calculations.
The
calculation of the Purchase Price, Conversion Rate, Sale Price of the Common
Stock and each other calculation to be made hereunder (other than the Debentures
Market Price) shall be the obligation of the Company. All calculations made
by
the Company as contemplated pursuant to this Section 14.08 shall be final and
binding on the Company and the Holders absent manifest error. The Trustee,
Paying Agent, Conversion Agent and Bid Solicitation Agent shall not be obligated
to recalculate, recompute or confirm any such calculations and shall be held
harmless by the Company from any and all claims, damages, losses and expenses
(including reasonable attorney’s fees) with respect to any errors or
inaccuracies in such calculations.
SECTION
14.09 Legal
Holidays.
A
“Legal
Holiday”
is
any
day other than a Business Day. If any specified date (including a date for
giving notice) is a Legal Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the action to be taken
on
such date is a payment in respect of the Securities, no Original Issue Discount
or interest, if any, shall accrue for the intervening period.
SECTION
14.10 GOVERNING
LAW.
THE
LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE
SECURITIES.
SECTION
14.11 No
Recourse Against Others.
A
director, officer, employee, agent, representative, stockholder or equity
holder, as such, of the Company shall not have any liability for any obligations
of the Company under the Securities or this Indenture or for any claim based
on,
in respect of or by reason of such obligations or their creation. By accepting
a
Security, each Securityholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION
14.12 Successors.
All
agreements of the Company in this Indenture and the Securities shall bind its
successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION
14.13 Multiple
Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement. One
originally signed copy is enough to prove this Indenture.
64
IN
WITNESS WHEREOF, the undersigned, being duly authorized, have executed this
Indenture on behalf of the respective parties hereto as of the date first above
written.
CBRL
GROUP,
INC.
By: ________________________
Name:
Title:
REGIONS
BANK, an
Alabama banking corporation, as Trustee
By: ________________________
Name:
Title:
CRACKER
BARREL OLD
COUNTRY
STORE,
INC., as
Guarantor
By: ________________________
Name:
Title:
CBOCS
DISTRIBUTION,
INC., as Guarantor
By: ________________________
Name:
Title:
65
CBOCS
PARTNER I, LLC,
as Guarantor
By: ________________________
Name:
Title:
CBOCS
PARTNER II,
LLC, as Guarantor
By: ________________________
Name:
Title:
CBOCS
PENNSYLVANIA,
LLC, as Guarantor
By: ________________________
Name:
Title:
CBOCS
PROPERTIES,
INC., as Guarantor
By: ________________________
Name:
Title:
CBOCS
SUPPLY, INC.,
as Guarantor
By: ________________________
Name:
Title:
66
GUN
BARREL ROAD
LOGAN’S, INC., as Guarantor
By: ________________________
Name:
Title:
CBOCS
WEST, INC., as
Guarantor
By: ________________________
Name:
Title:
CB
MUSIC LLC, as
Guarantor
By: ________________________
Name:
Title:
ROCKING
CHAIR, INC.,
as Guarantor
By: ________________________
Name:
Title:
CBOCS
TEXAS LIMITED
PARTNERSHIP, as Guarantor
By: ________________________
Name:
Title:
67
EXHIBIT
A-1
[FORM
OF FACE OF GLOBAL SECURITY]
FOR
PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THIS SECURITY
IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE DISCOUNT FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS _____________, 2007,
AND
THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS 7.32%
PER ANNUM, COMPOUNDED SEMIANNUALLY. THE HOLDER OF THIS SECURITY MAY OBTAIN
THE
PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION
TO: INVESTOR RELATIONS, CBRL GROUP, INC., P.O. BOX 787 LEBANON, TN
37088.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART,
TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
A-1-1
CBRL
GROUP, INC.
Zero
Coupon-Senior Convertible Note due 2032
No.
R-1
CUSIP:
12489V AC0
Issue
Date: _____________, 2007 Original
Issue Discount: $________
Issue
Price: $_____________ (for
each
$1,000 Principal
(for
each
$1,000 Principle
Amount
at
Maturity)
Amount
at
Maturity)
CBRL
GROUP, INC., a Tennessee corporation, promises to pay to Cede & Co. or
registered assigns, the Principal Amount at Maturity of _______________ dollars
($__________________) on April 2, 2032.
This
Security shall not bear interest except as specified on the other side of this
Security. Original Issue Discount will accrue as specified on the other side
of
this Security. This Security is convertible as specified on the other side
of
this Security.
Additional
provisions of this Security are set forth on the other side of this
Security.
Dated: ___________,
2007 CBRL
GROUP, INC.
By:
Title:
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
REGIONS
BANK, AN ALABAMA BANKING CORPORATION,
as
Trustee, certifies that this
is
one of
the Securities referred
to
in the
within-mentioned Indenture.
By:________________________
Authorized
Officer
Dated: ________________________
A-1-2
[FORM
OF REVERSE SIDE OF GLOBAL SECURITY]
Zero
Coupon - Senior Convertible Note due 2032
| 1. |
Interest.
|
This
Security shall not bear interest, except as specified in this paragraph or
in
paragraphs 5 and 11 hereof. If the Principal Amount at Maturity hereof or any
portion of such Principal Amount at Maturity is not paid when due (whether
upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 6 hereof, upon the date
set for payment of the Purchase Price pursuant to paragraph 7 hereof or upon
the
Stated Maturity of this Security) or if interest (including contingent interest,
if any) due hereon or any portion of such interest is not paid when due in
accordance with paragraph 5 or 11 hereof, then in each such case the overdue
amount shall, to the extent permitted by law, bear interest at the rate of
3.00%
per annum, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual
of
Original Issue Discount.
Original
Issue Discount (the difference between the Issue Price and the Principal Amount
at Maturity of the Security), in the period during which a Security remains
outstanding, shall accrue at 3.00% per annum, on a semiannual bond equivalent
basis using a 360-day year composed of twelve 30-day months, from the Issue
Date
of this Security.
| 2. |
Method
of Payment.
|
Subject
to the terms and conditions of the Indenture, the Company will make payments
in
respect of Redemption Prices, Purchase Prices, Purchase Prices and at Stated
Maturity to Holders who surrender Securities to a Paying Agent to collect such
payments in respect of the Securities. The Company will pay any cash amounts
in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make such cash
payments by check payable in such money.
| 3. |
Paying
Agent, Conversion Agent, Registrar and Bid Solicitation
Agent.
|
Initially,
Regions Bank, a national banking association (the “Trustee”),
will
act as Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent.
The
Company may appoint and change any Paying Agent, Conversion Agent, Registrar
or
co-registrar or Bid Solicitation Agent without notice, other than notice to
the
Trustee except that the Company will maintain at least one Paying Agent in
the
State of New York, City of New York, Borough of Manhattan, which shall initially
be an office or agency of the Trustee. The Company or any of its Subsidiaries
or
any of their Affiliates may act as Paying Agent, Conversion Agent, Registrar
or
co-registrar. None of the Company, any of its Subsidiaries or any of their
Affiliates shall act as Bid Solicitation Agent.
A-1-3
| 4. |
Indenture.
|
The
Company issued and the Guarantors have guaranteed the Securities pursuant to
an
Indenture dated as of _____________, 2007 (the “Indenture”),
among
the Company, the Guarantors and the Trustee. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as in effect from time to time (the
“TIA”).
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement of
those terms.
The
Securities and the Guarantees are general unsecured and unsubordinated
obligations, of the Company and the Guarantors, respectively, limited to
$422,050,000 aggregate Principal Amount at Maturity (subject to Section 2.07
of
the Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
| 5. |
Contingent
Interest.
|
Subject
to the accrual provisions specified in this paragraph 5, the Company shall
pay
contingent interest to the Holders during any six-month period (a “Contingent
Interest Period”)
from
April 4 to October 3 and from October 4 to April 3, commencing after April
3,
2007, if the average Debentures Market Price for the Five-Day Period with
respect to such Contingent Interest Period equals 120% or more of the sum of
the
Issue Price of a Security and Original Issue Discount accrued thereon to the
trading day immediately preceding the first day of the relevant Contingent
Interest Period.
The
amount of contingent interest payable per $1,000 Principal Amount at Maturity
hereof shall equal 0.125% of the average Debentures Market Price for the
Five-Day Period with respect to such Contingent Interest Period.
Contingent
interest, if any, will be payable to Holders as of the 15th
day
(whether or not a Business Day) preceding the last day of the relevant
Contingent Interest Period. Such payments shall be paid on the last day of
the
relevant Contingent Interest Period. Original Issue Discount will continue
to
accrue at 3.00% per annum whether or not contingent interest is
paid.
“Five-Day
Period”
means,
with respect to any Contingent Interest Period, the five trading days ending
on
the second trading day immediately preceding the first day of such Contingent
Interest Period.
“Debentures
Market Price”
means,
as of any date of determination, the average of the secondary market bid
quotations per $1,000 Principal Amount at Maturity obtained by the Bid
Solicitation Agent for $10 million Principal Amount at Maturity of Securities
at
approximately 4:00 p.m., New York City time, on such determination date
from three recognized securities dealers in The City of New York (none of which
shall be an Affiliate of the Company) selected by the Company; provided,
however, if (a) at least three such bids are not obtained by the Bid
Solicitation Agent or (b) in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities
as
of such determination date, then the Debentures Market Price for such
determination date shall equal (i) the Conversion Rate in effect as of such
determination date multiplied by (ii) the average Sale Price of the Common
Stock for
A-1-4
Upon
determination that Holders will be entitled to receive contingent interest
which
may become payable during a Contingent Interest Period, on or prior to the
first
day of such Contingent Interest Period, the Company shall promptly notify the
Trustee of such determination and shall issue a press release and publish such
information on its web site on the World Wide Web.
| 6. |
Redemption
at the Option of the Company.
|
No
sinking fund is provided for the Securities. The Securities are redeemable
as a
whole, or from time to time in part, at any time at the option of the Company
in
accordance with the Indenture at the Redemption Prices set forth below, provided
that the Securities are not redeemable prior to April 3, 2007.
The
table
below shows Redemption Prices of a Security per $1,000 Principal Amount at
Maturity on the dates shown below and at Stated Maturity, which prices reflect
accrued Original Issue Discount calculated to each such date. The Redemption
Price of a Security redeemed between such dates shall include an additional
amount reflecting the additional Original Issue Discount accrued since the
preceding date in the table but not including the Redemption Date.
|
Redemption
Date
|
(1)
Debentures
Issue
Price
|
(2)
Accrued
Original Issue Discount
|
(3)
Redemption
Price
(1)
+ (2)
|
|||||||
|
April
3
|
||||||||||
|
2007....................................................................................................................................
|
409.30
|
65.71
|
475.01
|
|||||||
|
2008....................................................................................................................................
|
409.30
|
80.07
|
489.37
|
|||||||
|
2009....................................................................................................................................
|
409.30
|
94.86
|
504.16
|
|||||||
|
2010....................................................................................................................................
|
409.30
|
110.09
|
519.39
|
|||||||
|
2011....................................................................................................................................
|
409.30
|
125.79
|
535.09
|
|||||||
|
2012....................................................................................................................................
|
409.30
|
141.97
|
551.27
|
|||||||
|
2013....................................................................................................................................
|
409.30
|
158.63
|
567.93
|
|||||||
|
2014....................................................................................................................................
|
409.30
|
175.79
|
585.09
|
|||||||
|
2015....................................................................................................................................
|
409.30
|
193.48
|
602.78
|
|||||||
|
2016....................................................................................................................................
|
409.30
|
211.70
|
621.00
|
|||||||
|
2017....................................................................................................................................
|
409.30
|
230.47
|
639.77
|
|||||||
|
2018....................................................................................................................................
|
409.30
|
249.80
|
659.10
|
|||||||
|
2019....................................................................................................................................
|
409.30
|
269.72
|
679.02
|
|||||||
|
2020....................................................................................................................................
|
409.30
|
290.25
|
699.55
|
|||||||
|
2021....................................................................................................................................
|
409.30
|
311.39
|
720.69
|
|||||||
|
2022....................................................................................................................................
|
409.30
|
333.17
|
742.47
|
|||||||
A-1-5
|
2023....................................................................................................................................
|
409.30
|
355.61
|
764.91
|
|||||||
|
2024....................................................................................................................................
|
409.30
|
378.73
|
788.03
|
|||||||
|
2025....................................................................................................................................
|
409.30
|
402.55
|
811.85
|
|||||||
|
2026....................................................................................................................................
|
409.30
|
427.09
|
836.39
|
|||||||
|
2027....................................................................................................................................
|
409.30
|
452.37
|
861.67
|
|||||||
|
2028....................................................................................................................................
|
409.30
|
478.41
|
887.71
|
|||||||
|
2029....................................................................................................................................
|
409.30
|
505.24
|
914.54
|
|||||||
|
2030....................................................................................................................................
|
409.30
|
532.88
|
942.18
|
|||||||
|
2031....................................................................................................................................
|
409.30
|
561.36
|
970.66
|
|||||||
|
At
Stated
Maturity...............................................................................................................
|
409.30
|
590.70
|
1,000.00
|
If
this
Security has been converted to a semiannual coupon note following the occurrence
of a Tax Event, the Redemption Price will be equal to the Restated Principal
Amount plus accrued and unpaid interest from the date of such conversion to
but
not including the Redemption Date; but in no event will this Security be
redeemable before April 3, 2007.
| 7. |
Purchase
by the Company at the Option of the
Holder.
|
Subject
to the terms and conditions of the Indenture, the Company shall become obligated
to purchase, at the option of the Holder, the Securities held by such Holder
on
the following Purchase Dates and at the following Purchase Prices per $1,000
Principal Amount at Maturity, upon delivery of a Purchase Notice containing
the
information set forth in the Indenture, at any time from the opening of business
on the date that is 20 Business Days prior to such Purchase Date until the
close
of business on the day immediately preceding such Purchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in
the
Indenture.
| Purchase Date | Purchase Price | |||
| April 3 2012 | $ | 551.27 | ||
| April 3, 2017 | $ | 639.77 | ||
| April 3, 2022 | $ | 742.47 | ||
| April 3, 2027 | $ | 861.67 | ||
The
Purchase Price (equal to the Issue Price plus accrued Original Issue Discount
to
the Purchase Date) shall be paid in cash in accordance with the
Indenture.
If
prior
to a Purchase Date this Security has been converted to a semiannual coupon
note
following the occurrence of a Tax Event, the Purchase Price will be equal to
the
Restated Principal Amount plus accrued and unpaid interest from the date of
conversion to the Purchase Date as provided in the Indenture.
A
third
party may make the offer and purchase of the Securities in lieu of the Company
in accordance with the Indenture.
Holders
have the right to withdraw any Purchase Notice by delivering to the Paying
Agent
a written notice of withdrawal in accordance with the provisions of the
Indenture.
A-1-6
If
cash
sufficient to pay the Purchase Price of all Securities or portions thereof
to be
purchased as of the Purchase Date is deposited with the Paying Agent on the
Business Day following the Purchase Date, Original Issue Discount and contingent
interest, if any, shall cease to accrue on such Securities (or portions thereof)
on such Purchase Date, and the Holder thereof shall have no other rights as
such
(other than the right to receive the Purchase Price upon surrender of such
Security).
| 8. |
Notice
of Redemption.
|
Notice
of
redemption will be mailed at least 15 days but not more than 60 days before
the
Redemption Date to each Holder of Securities to be redeemed at the Holder’s
registered address. If money sufficient to pay the Redemption Price of, and
accrued and unpaid contingent interest, if any, with respect to, all Securities
(or portions thereof) to be redeemed on the Redemption Date is deposited with
the Paying Agent prior to or on the Redemption Date, on such Redemption Date,
Original Issue Discount and interest (including contingent interest), if any,
shall cease to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of Principal Amount at Maturity may be redeemed
in part but only in integral multiples of $1,000 of Principal Amount at
Maturity.
| 9. |
Conversion.
|
A
Holder
of a Security may convert such Security into cash, and, if applicable, Common
Stock, at any time, at the rate (the “Conversion
Rate”)
of
10.8584 shares of Common Stock per $1,000 in principal amount at maturity of
the
Security.
A
Holder
may convert a portion of the Principal Amount at Maturity of a Security if
the
portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of a Security.
Subject
to certain exceptions, if Securities are tendered for conversion, the value
(the
“Conversion
Value”)
of the
cash and shares of Common Stock, if any, to be received by a holder converting
$1,000 principal amount at maturity of the Securities will be determined by
multiplying the applicable Conversion Rate by the average of the Sale Prices
of
the Common Stock for the ten consecutive trading days beginning on the second
trading day immediately following the day on which the Securities are submitted
for conversion (the “Cash
Settlement Averaging Period”).
Upon
conversion of Securities, the Conversion Value will be delivered to
Securityholders as follows:
(1) an
amount
in cash (the “Principal
Return”)
equal
to the lesser of (a) the Conversion Value of each Security to be converted
and
(b) the Accreted Principal Amount of each Security to be converted,
(2) if
the
Conversion Value of the Securities to be converted is greater than the accreted
principal amount, an amount in whole shares (the “Net
Shares”),
calculated as
A-1-7
(3) an
amount
in cash in lieu of any fractional shares of common stock.
The
number of Net Shares to be paid will be equal to the greater of (i) zero and
(ii) the sum of, for each trading day during the Cash Settlement Averaging
Period, the quotient of (A) 10% of the difference between (1) the product of
the
Conversion Rate in effect and the Sale Price of the Common Stock for such day;
and (2) the Accreted Principal Amount of the Securities to be converted as
of
the conversion date, divided by (B) the Sale Price of the Common
Stock.
The
“Accreted
Principal Amount”
with
respect to any Securities means, at any date of determination, the sum of:
(1)
the initial principal amount of the Security upon issuance; and (2 ) the accrued
Original Issue Discount that has been accreted to the principal amount of the
Security.
The
“Sale
Price”
of
the
Common Stock on any date means the closing per share sale price (or if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average
ask
prices) on such date as reported in composite transactions for the principal
United States securities exchange on which the common stock is traded or, if
the
common stock is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by Pink Sheets, LLC. In the absence of a
quotation, we will determine the sale price on the basis of such quotations
as
we consider appropriate.
The
“accreted
conversion price per share”
of
Common Stock as of any day equals the quotient of:
| · |
the
Issue Price and accrued Original Issue Discount to that day, divided
by
|
| · |
the
number of shares of Common Stock issuable upon conversion of $1,000
Principal Amount at Maturity of Securities on that
day.
|
Subject
to the provisions of this paragraph 9 and notwithstanding the fact that any
other condition to conversion has not been satisfied, a Holder may convert
into
Common Stock a Security or portion of a Security which has been called for
redemption pursuant to paragraph 6 hereof, but such Securities may be
surrendered for conversion until the close of business on the second Business
Day immediately preceding the Redemption Date.
Subject
to the provisions of this paragraph 9 and notwithstanding the fact that any
other condition to conversion has not been satisfied, in the event that the
Company declares a dividend or distribution described in Section 11.07 of the
Indenture, or a dividend or a distribution described in Section 11.08 of the
Indenture where, the fair market value, per share, of such dividend or
distribution per share of Common Stock, as determined in the Indenture, exceeds
15% of the Sale Price of the Common Stock on the Business Day immediately
preceding the date of declaration for such dividend or distribution, the
Securities may be surrendered for conversion
A-1-8
Subject
to the provisions of this paragraph 9 and notwithstanding the fact that any
other condition to conversion has not been satisfied, in the event the Company
is a party to a consolidation, merger or binding share exchange pursuant
to which the Common Stock would be converted into cash, securities or other
property as set forth in Section 11.14 of the Indenture, the Securities may
be
surrendered for conversion at any time from and after the date which is 15
days
prior to the date the Company announces the anticipated effective time until
15
days after the actual effective date of such transaction, and at the effective
time of such transaction the right to convert a Security into Common Stock
will
be deemed to have changed into a right to convert it into the kind and amount
of
cash, securities or other property which the holder would have received if
the
holder had converted its Security immediately prior to the
transaction.
A
Security in respect of which a Holder has delivered a Purchase Notice exercising
the option of such Holder to require the Company to purchase such Security
may
be converted only if such notice of exercise is withdrawn in accordance with
the
terms of the Indenture.
The
initial Conversion Rate is 10.8584 shares of Common Stock per $1,000 Principal
Amount at Maturity, subject to adjustment in certain events described in the
Indenture. The Company will deliver cash or a check in lieu of any fractional
share of Common Stock.
In
the
event the Company exercises its option pursuant to Section 10.01 of the
Indenture to have interest in lieu of Original Issue Discount accrue on the
Security following a Tax Event, the Holder will be entitled on conversion to
receive the same number of shares of Common Stock such Holder would have
received if the Company had not exercised such option.
Accrued
and unpaid interest in lieu of Original Issue Discount and contingent interest
will not be paid on Securities that are converted; provided, however that
Securities surrendered for conversion during the period, in the case of interest
in lieu of Original Issue Discount, from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date, shall be entitled to receive such interest,
in
lieu of Original Issue Discount, payable on such Securities on the corresponding
Interest Payment Date and (except Securities with respect to which the Company
has mailed a notice of redemption) Securities surrendered for conversion during
such periods must be accompanied by payment of an amount equal to the interest
in lieu of Original Issue Discount with respect thereto that the registered
Holder is to receive.
To
convert a Security, a Holder must (1) complete and manually sign the conversion
notice below (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (2) surrender the Security to
the
Conversion Agent, (3) furnish appropriate endorsements and transfer documents
if
required by the Conversion Agent, the Company or the Trustee and (4) pay any
transfer or similar tax, if required.
A-1-9
A
Holder
may convert a portion of a Security if the Principal Amount at Maturity of
such
portion is $1,000 or an integral multiple of $1,000. No payment or adjustment
will be made for dividends on the Common Stock except as provided in the
Indenture. On conversion of a Security, the greater of that portion of accrued
Original Issue Discount (or interest if the Company has exercised its option
provided for in paragraph 11 hereof) or Tax Original Issue Discount attributable
to the period from the Issue Date (or, if the Company has exercised the option
referred to in paragraph 11 hereof, the later of (x) the date of such exercise
and (y) the date on which interest was last paid) through the Conversion Date
and (except as provided above) accrued contingent interest, if any, with respect
to the converted Security shall not be cancelled, extinguished or forfeited,
but
rather shall be deemed to be paid in full to the Holder thereof through the
delivery of the Common Stock (together with the cash payment, if any, in lieu
of
fractional shares) in exchange for the Security being converted pursuant to
the
terms hereof; and the fair market value of such shares of Common Stock (together
with any such cash payment in lieu of fractional shares) shall be treated as
issued, to the extent thereof, first in exchange for the greater of Original
Issue Discount (or interest, if the Company has exercised its option provided
for in paragraph 11 hereof) or Tax Original Issue Discount accrued through
the
Conversion Date and any accrued contingent interest, and the balance, if any,
of
such fair market value of such Common Stock (and any such cash payment) shall
be
treated as issued in exchange for the Issue Price of the Security being
converted pursuant to the provisions hereof.
The
Conversion Rate will be adjusted for dividends or distributions on Common Stock
payable in Common Stock or other Capital Stock; subdivisions, combinations
or
certain reclassifications of Common Stock; distributions to all holders of
Common Stock of certain rights to purchase Common Stock for a period expiring
within 60 days of the record date for such distribution at less than the Sale
Price of the Common Stock at the Time of Determination; and distributions to
such holders of assets or debt securities of the Company or certain rights
to
purchase securities of the Company (excluding certain cash dividends or
distributions) and certain rights pursuant to shareholder rights plans. However,
no adjustment need be made if Securityholders may participate in the transaction
or in certain other cases. The Company from time to time may voluntarily
increase the Conversion Rate.
If
the
Company is a party to a consolidation, merger or binding share exchange or
a
transfer of all or substantially all of its assets, or upon certain
distributions described in the Indenture, the right to convert a Security into
Common Stock may be changed into a right to convert it into securities, cash
or
other assets of the Company or another person.
| 10. |
Conversion
Arrangement on Call for Redemption.
|
Any
Securities called for redemption, unless surrendered for conversion before
the
close of business on the Redemption Date, may be deemed to be purchased from
the
Holders of such Securities at an amount not less than the Redemption Price,
by
one or more investment bankers or other purchasers who may agree with the
Company to purchase such Securities from the Holders, to convert them into
Common Stock of the Company and to make payment for such Securities to the
Trustee in trust for such Holders.
A-1-10
| 11. |
Tax
Event.
|
(a) From
and
after (i) the date of the occurrence of a Tax Event (the “Tax
Event Date”)
and
(ii) the date the Company exercises the option provided for in this paragraph
11, whichever is later (the “Option
Exercise Date”),
at
the option of the Company, interest in lieu of future Original Issue Discount
shall accrue at the rate of 3.00% per annum on a principal amount per Security
(the “Restated
Principal Amount”)
equal
to the Issue Price plus Original Issue Discount accrued through the Option
Exercise Date and shall be payable semiannually on April 3 and October 3 of
each
year (each an “Interest
Payment Date”)
to
holders of record at the close of business on March 19 or September 18 (each
a
“Regular
Record Date”)
immediately preceding such Interest Payment Date. Interest will be computed
on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date to which interest has been paid or, if no interest
has
been paid, from the Option Exercise Date.
(b) Interest
on any Security that is payable, and is punctually paid or duly provided for,
on
any Interest Payment Date shall be paid to the person in whose name that
Security is registered at the close of business on the Regular Record Date
for
such interest at the office or agency of the Company maintained for such
purpose. Each installment of interest on any Security shall be paid in same-day
funds by transfer to an account maintained by the payee located inside the
United States.
(c) From
and
after the Option Exercise Date, contingent interest provided for in paragraph
5
hereof shall cease to accrue on this Security.
| 12. |
Defaulted
Interest.
|
Except
as
otherwise specified with respect to the Securities, any Defaulted Interest
on
any Security shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date or accrual date, as the case may
be,
by virtue of having been such Holder, and such Defaulted Interest may be paid
by
the Company as provided for in Section 12.02 of the Indenture.
| 13. |
Denominations;
Transfer; Exchange.
|
The
Securities are in fully registered form, without coupons, in denominations
of
$1,000 of Principal Amount at Maturity and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required
by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to
be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice has been given and not
withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased) or any Securities for a period
of
15 days before the mailing of a notice of redemption of Securities to be
redeemed.
A-1-11
| 14. |
Persons
Deemed Owners.
|
The
registered Holder of this Security may be treated as the owner of this Security
for all purposes.
| 15. |
Unclaimed
Money or Securities.
|
The
Trustee and the Paying Agent shall return to the Company upon written request
any money or securities held by them for the payment of any amount with respect
to the Securities that remains unclaimed for two years, subject to applicable
unclaimed property laws. After return to the Company, Holders entitled to the
money or securities must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another
person.
| 16. |
Amendment;
Waiver.
|
Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least
a
majority in aggregate Principal Amount at Maturity of the Securities at the
time
outstanding and (ii) certain Defaults may be waived with the written consent
of
the Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding. Subject to certain exceptions set forth
in
the Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 or Section 11.14
of the Indenture, to secure the Company’s obligations under this Security or to
add to the Company’s covenants for the benefit of the Securityholders or to
surrender any right or power conferred, to comply with any requirement of the
SEC in connection with the qualification of the Indenture under the TIA, or
as
necessary in connection with the registration of the Securities under the
Securities Act or to make any change that does not adversely affect the rights
of any Holders.
| 17. |
Defaults
and Remedies.
|
Under
the
Indenture, Events of Default include (i) default in the payment of
contingent interest when the same becomes due and payable or of interest which
becomes due and payable upon exercise by the Company of its option provided
for
in paragraph 11 hereof which default in either case continues for 30 days;
(ii)
default in payment of the Principal Amount at Maturity (or, if the Securities
have been converted to semiannual coupon notes following a Tax Event, the
Restated Principal Amount), Issue Price plus accrued Original Issue Discount,
Redemption Price, or Purchase Price, in respect of the Securities when the
same
becomes due and payable; (iii) failure by the Company or any Guarantor to comply
with other agreements in the Indenture or the Securities, subject to notice
and
lapse of time; (iv) (a) failure of the Company to make any payment by the end
of
any applicable grace period after maturity of Debt in an amount (taken together
with amounts in (b) below) in excess of $10,000,000, or (b) an acceleration
of
Debt has occurred in an amount (taken together with amounts in (a) above) in
excess of $10,000,000 because of a default with respect to such Debt without
such Debt having been discharged or such acceleration having been cured, waived,
rescinded or annulled, subject to notice and lapse of time; provided, however,
that if any such failure or acceleration referred to in (a) or (b)
above
A-1-12
Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities
unless it receives indemnity or security reasonably satisfactory to it. Subject
to certain limitations, Holders of a majority in aggregate Principal Amount
at
Maturity of the Securities at the time outstanding may direct the Trustee in
its
exercise of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of amounts
specified in clause (i) or (ii) above) if it determines that withholding notice
is in their interests.
| 18. |
Trustee
Dealings with the Company.
|
Subject
to certain limitations imposed by the TIA, the Trustee under the Indenture,
in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with and collect obligations owed to it by
the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not
Trustee.
| 19. |
No
Recourse Against Others.
|
A
director, officer, employee, agent, representative, stockholder or equity
holder, as such, of the Company shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim based
on,
in respect of or by reason of such obligations or their creation. By accepting
a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the
Securities.
| 20. |
Authentication.
|
This
Security shall not be valid until an authorized signatory of the Trustee
manually signs the Trustee’s Certificate of Authentication on the other side of
this Security.
A-1-13
| 21. |
Abbreviations.
|
Customary
abbreviations may be used in the name of a Securityholder or an assignee, such
as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with right of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
| 22. |
GOVERNING
LAW.
|
THE
LAW
OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE, THE GUARANTEES AND THIS
SECURITY.
----------------------
A-1-14
The
Company will furnish to any Securityholder upon written request and without
charge a copy of the Indenture which has in it the text of this Security in
larger type. Requests may be made to:
CBRL
Group, Inc.
P.O.
Box
787
Lebanon,
TN 37088
Attention:
Chief Financial Officer
A-1-15
|
ASSIGNMENT
FORM
|
CONVERSION
NOTICE
|
|
|
To
assign this Security, fill in the form below:
|
To
convert this Security into Common Stock of the Company, check the
box:
|
|
|
I
or we assign and transfer this Security to
|
9
|
|
| To
convert only part of this Security, state the Principal Amount
at Maturity
to be converted (which must be $1,000 or an integral multiple of
$1,000):
|
||
|
(Insert
assignee’s soc. sec. or tax ID no.)
|
$_______________________________________________________________________
|
|
| If
you want the stock certificate made out in another person’s name, fill in
the form below:
|
||
|
|
|
|
|
|
|
|
|
(Print
or type assignee’s name, address and zip code)
|
(Insert
other person’s soc. sec. or tax ID no.)
|
|
|
and
irrevocably appoint
|
|
|
|
_____________________
agent to transfer this Security on
the books of the Company. The agent may substitute another
to act for him.
|
|
|
| |
||
| |
||
| (Print
or type other person’s name, address and zip
code)
|
A-1-16
Date:
___________________________ Your
Signature:_____________________________________________________________________________
__________________________________________________________________________________________________________________________
(Sign
exactly as your name appears on the other side of this Security)
A-1-17
Exhibit
A-2
[FORM
OF GUARANTEE]
The
Guarantors (as defined in the Indenture and which term includes any successor
person under the Indenture), upon the terms and subject to the conditions set
forth in the Indenture, hereby unconditionally guaranteed on a senior unsecured
basis (such guarantee by each Guarantor being referred to herein as the
"Guarantee")
(i)
the due and punctual payment of the principal of and interest (including
contingent interest) on the Securities, whether at maturity, by acceleration
or
otherwise, the due and punctual payment of interest on the overdue principal
and
interest, if any, on the Securities, to the extent lawful, and the due and
punctual performance of all other obligations of the Company to the Holders
or
the Trustee all in accordance with the terms set forth in Article 13 of the
Indenture and (ii) in case of any extension of time of payment or renewal of
any
Securities or any of such other obligations, that the same will be promptly
paid
in full when due or performed in accordance with the terms of the extension
or
renewal, whether at Stated Maturity, by acceleration or otherwise.
The
obligations of the undersigned to the Holders of the Securities and to the
Trustee pursuant to this Guarantee and in the Indenture are expressly set forth
in the Indenture and reference is hereby made to the Indenture for the precise
terms of the Guarantees and all of the other provisions of the Indenture to
which this Guarantee relates.
No
stockholder, officer, director, employee or incorporator, as such, past, present
or future, of any Guarantor shall have any liability under the Guarantee by
reason of his or its status as such stockholder, officer, director, employee
or
incorporator.
The
Guarantee shall not be valid or obligatory for any purpose until the certificate
of authentication on the Securities upon which the Guarantee is noted shall
have
been executed by the Trustee under the Indenture by the manual signature of
one
of its authorized signatories.
A-1-18
The
Guarantee shall be governed by and construed in accordance with the law of
the
State of New York applicable to agreements made or instruments entered into
and,
in each case, performed in said state.
IN
WITNESS WHEREOF, the Guarantors have caused this instrument to be duly
executed.
CRACKER
BARREL OLD
COUNTRY
STORE,
INC.
CBOCS
DISTRIBUTION,
INC.
CBOCS
PARTNER I,
LLC
CBOCS
PARTNER II,
LLC
CBOCS
PENNSYLVANIA,
LLC
CBOCS
PROPERTIES,
INC.
CBOCS
SUPPLY,
INC.
GUN
BARREL ROAD LOGAN’S,
INC.
CBOCS
WEST,
INC.
CB
MUSIC LLC
ROCKING
CHAIR,
INC.
CBOCS
TEXAS LIMITED
PARTNERSHIP
By:
_________________________________
A-1-19
EXHIBIT
A-3
[Form
of Certificated Security]
FOR
PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THIS SECURITY
IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE DISCOUNT FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS _____________, 2007,
AND
THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS 7.32%
PER ANNUM, COMPOUNDED SEMIANNUALLY. THE HOLDER OF THIS SECURITY MAY OBTAIN
THE
PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION
TO: INVESTOR RELATIONS, CBRL GROUP, INC., P.O. BOX 787 LEBANON, TN
37088.
THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
B-1-1
CBRL
GROUP, INC.
Zero
Coupon-Senior Convertible Note due 2032
No.
R-1
CUSIP:
12489V AC0
Issue
Date: _____________, 2007 Original
Issue Discount: $________
Issue
Price: $_____________ (for
each
$1,000 Principal
(for
each
$1,000 Principle
Amount
at
Maturity)
Amount
at
Maturity)
CBRL
GROUP, INC., a Tennessee corporation, promises to pay to Cede & Co. or
registered assigns, the Principal Amount at Maturity of _______________ dollars
($__________________) on April 2, 2032.
This
Security shall not bear interest except as specified on the other side of this
Security. Original Issue Discount will accrue as specified on the other side
of
this Security. This Security is convertible as specified on the other side
of
this Security.
Additional
provisions of this Security are set forth on the other side of this
Security.
Dated: ___________,
2007 CBRL
GROUP, INC.
By:
Title:
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
REGIONS
BANK, AN ALABAMA BANKING CORPORATION,
as
Trustee, certifies that this
is
one of
the Securities referred
to
in the
within-mentioned Indenture.
By:________________________
Authorized
Officer
Dated: ________________________
B-1-2
EXHIBIT
B-1
Form
of Letter to be Delivered by Accredited Investors
CBRL
Group, Inc.
P.O.
Box
787
Lebanon,
TN 37088
Attention:
Chief Financial Officer
Regions
Bank
Corporate
Trust Services
315
Deaderick Street, 2nd Floor
Nashville,
Tennessee 37237
Attention:
Corporate Trust Department
Dear
Sirs:
We
are
delivering this letter in connection with the proposed transfer of
$_____________ Principal Amount at Maturity of the Zero-Coupon Senior Notes
due
2032 (“Debentures”) issued by CBRL Group, Inc. (the “Company”),
which
are convertible into shares of the Company’s Common Stock, $0.01 par value per
share (the “Common
Stock”).
We
hereby
confirm that:
(i) we
are an
“accredited
investor”
within
the meaning of Rule 501(a)(1), (2) or (3) under the Securities Act of 1933,
as amended (the “Securities
Act”),
or an
entity in which all of the equity owners are accredited investors within the
meaning of Rule 501(a)(1), (2) or (3) under the Securities Act (an
“Institutional
Accredited Investor”);
(ii) the
purchase of Debentures by us is for our own account or for the account of one
or
more other Institutional Accredited Investors or as fiduciary for the account
of
one or more trusts, each of which is an “accredited
investor”
within
the meaning of Rule 501(a)(7) under the Securities Act and for each of
which we exercise sole investment discretion or (B) we are a “bank,”
within
the meaning of Section 3(a)(2) of the Securities Act, or a “savings
and loan association”
or
other institution described in Section 3(a)(5)(A) of the Securities Act
that is acquiring Debentures as fiduciary for the account of one or more
institutions for which we exercise sole investment discretion;
(iii) we
will
acquire Debentures having a minimum principal amount at maturity of not less
than $250,000 for our own account or for any separate account for which we
are
acting;
B-2-1
(iv) we
have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of purchasing Debentures;
and
(v) we
are
not acquiring Debentures with a view to distribution thereof or with any present
intention of offering or selling Debentures or the Common Stock issuable upon
conversion thereof, except as permitted below; provided that the disposition
of
our property and property of any accounts for which we are acting as fiduciary
shall remain at all times within our control.
We
acknowledge that the Company, others and you will rely upon our confirmations,
acknowledgments and agreements set forth herein, and we agree to notify you
promptly in writing if any of our representations or warranties herein ceases
to
be accurate and complete.
B-2-2
THIS
LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS
OF THE STATE OF NEW YORK.
__________________________________
(Name
of
Purchaser)
By:______________________________
Name:
Title:
Address:
C-1
ANNEX
C
Projected
Payment Schedule*
|
Semi-annual
Period Ending
|
Projected
Payment per Security
|
|
|
April
4, 2007
|
--
|
|
|
October
4, 2007
|
--
|
|
|
April
4, 2008
|
--
|
|
|
October
4, 2008
|
--
|
|
|
April
4, 2009
|
--
|
|
|
October
4, 2009
|
--
|
|
|
April
4, 2010
|
--
|
|
|
October
4, 2010
|
--
|
|
|
April
4, 2011
|
--
|
|
|
October
4, 2011
|
--
|
|
|
April
4, 2012
|
0.8179
|
|
|
October
4, 2012
|
0.8514
|
|
|
April
4, 2013
|
0.8862
|
|
|
October
4, 2013
|
0.9225
|
|
|
April
4, 2014
|
0.9602
|
|
|
October
4, 2014
|
0.9995
|
|
|
April
4, 2015
|
1.0404
|
|
|
October
4, 2015
|
1.0830
|
|
|
April
4, 2016
|
1.1273
|
|
|
October
4, 2016
|
1.1734
|
|
|
April
4, 2017
|
1.2214
|
|
|
October
4, 2017
|
1.2714
|
|
|
April
4, 2018
|
1.3234
|
|
|
October
4, 2018
|
1.3776
|
|
|
April
4, 2019
|
1.4339
|
|
|
October
4, 2019
|
1.4926
|
|
|
April
4, 2020
|
1.5536
|
|
|
October
4, 2020
|
1.6172
|
|
|
April
4, 2021
|
1.6834
|
|
|
October
4, 2021
|
1.7522
|
|
|
April
4, 2022
|
1.8239
|
* The
comparable yield and the
schedule of projected payments are determined on the basis of an assumption
of
linear growth of the stock price and a constant dividend yield and are not
determined for any purpose other than for the determination of interest accruals
and adjustments thereof in respect of the Securities for United States federal
income tax purposes. The comparable yield and the schedule of projected payments
do not constitute a projection or representation regarding the amounts payable
on the Securities.
C-1
|
October
4, 2022
|
1.8986
|
|
|
April
4, 2023
|
1.9762
|
|
|
October
4, 2023
|
2.0571
|
|
|
April
4, 2024
|
2.1412
|
|
|
October
4, 2024
|
2.2289
|
|
|
April
4, 2025
|
2.3200
|
|
|
October
4, 2025
|
2.4150
|
|
|
April
4, 2026
|
2.5138
|
|
|
October
4, 2026
|
2.6166
|
|
|
April
4, 2027
|
2.7237
|
|
|
October
4, 2027
|
2.8351
|
|
|
April
4, 2028
|
2.9511
|
|
|
October
4, 2028
|
3.0718
|
|
|
April
4, 2029
|
3.1975
|
|
|
October
4, 2029
|
3.3283
|
|
|
April
4, 2030
|
3.4645
|
|
|
October
4, 2030
|
3.6062
|
|
|
April
4, 2031
|
3.7538
|
|
|
October
4, 2031
|
3.9074
|
|
|
April
4, 2032
|
4.0672
|
C-2
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________________
FORM
T-1
STATEMENT
OF ELIGIBILITY
UNDER
THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION
DESIGNATED TO ACT AS TRUSTEE
_____________________________
o
CHECK
IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(b) (2)
REGIONS
BANK
(Exact
name of trustee as specified in its charter)
|
An
Alabama Banking Corporation
|
|
63-0371319
|
|
(Jurisdiction
of incorporation)
|
|
(I.R.S.
Employer Identification No.)
|
_____________________________
Regions
Bank
Corporate
Trust Department
417
North 20th Street
Birmingham,
Alabama 35202
(Address
of principal executive offices)
Caroline
Oaks
Senior
Vice President & State Manager
Regions
Bank, Corporate Trust Services
315
Deaderick Street, 2nd Floor
Nashville,
Tennessee 37237
(615)
770-4354
(Name,
address and telephone number of agent for service)
_____________________________
CBRL
GROUP, INC.1
(Exact
name of obligor as specified in its charter)
|
Tennessee
|
|
62-1749513
|
|
(Jurisdiction
of incorporation)
|
|
(I.R.S.
Employer Identification No.)
|
Lawrence
E. White
Senior
Vice President - Finance and Chief Financial Officer
CBRL
Group, Inc.
305
Hartmann Drive,
P.O.
Box 787
Lebanon,
Tennessee 37088-0787
Telephone:
(615) 444-5533
_____________________________
Zero
Coupon Senior Convertible Notes due 2032
(Title
of
the indenture securities)
1 See
Table
1 - List of additional obligors
Table
1
|
Cracker
Barrel Old Country Store, Inc.
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
CBOCS
Distribution, Inc.
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
CBOCS
Partner I, LLC
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
CBOCS
Partner II, LLC
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
CBOCS
Pennsylvania, LLC
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
CBOCS
Properties, Inc.
|
45525
North I-94 Service Road, Belleville, Michigan 48111
|
|
CBOCS
Supply, Inc.
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
Gun
Barrel Road Logan’s, Inc.
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
CBOCS
West, Inc.
|
3993
Howard Hughes Parkway • Suite 250 • Las Vegas, NV 89169
|
|
CB
Music LLC
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
Rocking
Chair, Inc.
|
3993
Howard Hughes Parkway • Suite 250 • Las Vegas, NV 89169
|
|
CBOCS
Texas Limited Partnership
|
305
Hartmann Dr , Lebanon, TN 37087
|
|
Item
1.
|
General
Information. Furnish the following information as to the
trustee:
|
|
|
(a)
|
Name
and address of each examining or supervising authority to which it
is
subject.
|
|
|
|
Federal
Reserve Bank of Atlanta, Atlanta, Georgia
|
|
|
|
Alabama
State Banking Department, Montgomery, Alabama
|
|
|
(b)
|
Whether
it is authorized to exercise corporate trust
powers.
|
||
|
|
|
The
trustee is authorized to exercise corporate trust
powers.
|
||
|
Item
2.
|
Affiliations
with Obligor. If the obligor is an affiliate of the trustee, describe
each
such affiliation.
None.
|
|||
|
No
responses are included for Items 3-14 of this Form T-1 because the
obligor
is not in default as provided under Item 13.
|
||||
|
Item
16.
|
List
of Exhibits.
|
|||
|
Exhibit
1(a).
|
Restated
Articles of Incorporation of the Trustee (incorporated
by reference to Exhibit 1 to Form T-1 (Registration No. 22-21909).
|
|
|
Exhibit
1(b).
|
Articles
of Amendment to Restated Articles
of Incorporation of the
Trustee. (incorporated by reference to Exhibit 1(b) to Form T-1,
filed in
connection with the
Current Report on Form 8-K of BellSouth Telecommunications,
Inc. dated October 9, 1997).
|
|
|
Exhibit
1(c).
|
Articles
of Amendment to Restated Articles of Incorporation of the Trustee
(incorporated by reference to Exhibit 1(c) to Form T-1, filed as
Exhibit
25 to the Form S-3/A of BellSouth Telecommunications, Inc. filed
with the
Commission on August 17, 2004).
|
|
|
Exhibit
2.
|
Not
applicable.
|
|
|
|
Exhibit
3.
|
Authorization
of the Trustee to exercise corporate trust powers (incorporated by
reference to Exhibit 3 to Form T-1, Registration No.
22-21909).
|
|
|
Exhibit
4.
|
Bylaws
of the Trustee (incorporated by reference to Exhibit 4 to Form T-1,
Registration No. 33-60351).
|
|
|
Exhibit
5.
|
Not
applicable.
|
|
|
Exhibit
6.
|
The
consent of the trustee required by Section 321(b) of the
Act.
|
|
Exhibit
7.
|
A
copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority.
|
|
|
|
Exhibit
8.
|
Not
applicable.
|
|
|
Exhibit
9.
|
Not
applicable.
|
SIGNATURE
Pursuant
to the requirements of the Trust Indenture Act of 1939, as amended, the trustee,
Regions Bank, an Alabama banking corporation, has duly caused this statement
of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Nashville and State of Tennessee on the 20th
day of March 2007.
|
|
|
|
|
|
|
|
|
|
REGIONS
BANK
|
|
|
|
|
|
|
|
By:
|
/s/ Caroline Oakes |
|
|
Name:
Caroline
Oakes
Title:
Senior
Vice President
|
|
|
|
|
|
EXHIBIT
6
CONSENT
OF TRUSTEE
Pursuant
to the requirements of Section 321(b) of the Trust Indenture Act of 1939, in
connection with the proposed issue of Debt Securities by CBRL Group, Inc.,
we
hereby consent that reports of examinations by Federal, State, Territorial
or
District authorities may be furnished by such authorities to the Securities
and
Exchange Commission upon request therefor.
Dated:
March 20, 2007
REGIONS
BANK
By:
/s/ Caroline
Oakes
Caroline
Oakes,
Senior Vice
President
&
State Manager Regions
Bank,
Corporate Trust
Services
Exhibit
7
Consolidated
Report of Condition of
Regions
Bank, an Alabama Banking Corporation
For
Insured Commercial and State-Chartered Savings Banks
December
31, 2006
|
|
|
|
|
Dollar
Amounts
In
Millions
|
|
||
|
ASSETS
|
|
|
|
|
|
||
|
1.
Cash and balances due from depository institutions:
|
|
|
|
|
|
||
|
a.
Noninterest-bearing balances and currency and coin
|
3,521,757
|
|
|||||
|
b.
Interest-bearing balances
|
55,818
|
|
|||||
|
2.
Securities:
|
|
||||||
|
a.
Held-to-maturity securities
|
24,456
|
|
|||||
|
b.
Available-for-sale securities
|
17,904,507
|
|
|||||
|
3.
Federal funds sold and securities purchased under agreements to
resell:
|
|
||||||
|
a.
Federal funds sold in domestic offices
|
5,000
|
|
|||||
|
b.
Securities purchased under agreements to resell
|
145,311
|
|
|||||
|
4.
Loans and lease financing receivables:
|
|
||||||
|
a.
Loans and leases held for sale
|
4,996,406
|
|
|||||
|
b.
Loans and leases, net of unearned income
|
94,551,883
|
|
|||||
|
c.
LESS: Allowance for loan and lease losses
|
1,055,953
|
|
|||||
|
d.
Loans and leases, net of unearned income and allowance
|
93,495,930
|
|
|||||
|
5.
Trading Assets
|
319,655
|
|
|||||
|
6.
Premises and fixed assets (including capitalized leases)
|
2,344,773
|
|
|||||
|
7.
Other real estate owned
|
75,722
|
|
|||||
|
8.
Investments in unconsolidated subsidiaries and associated
companies
|
106,135
|
|
|||||
|
9.
Not
applicable
|
|||||||
|
10.
Intangible assets
|
|
||||||
|
a.
Goodwill
|
10,153,489
|
|
|||||
|
b.
Other intangible assets
|
1.326.455
|
|
|||||
|
11.
Other assets
|
4,192,524
|
|
|||||
|
12.
Total assets
|
138,667,948
|
|
|||||
|
LIABILITIES
|
|
||||||
|
13.
Deposits:
|
|
||||||
|
a.
In
domestic offices
|
92,688,340
|
|
|||||
|
(1)
Noninterest-bearing
|
20,677,020
|
|
|||||
|
(2)
Interest-bearing
|
72,011,320
|
|
|||||
|
b.
In
foreign offices, Edge and Agreement subsidiaries, and IBFs
|
9,228,328
|
|
|||||
|
(1)
Noninterest-bearing
|
70,821
|
|
|||||
|
(2)
Interest-bearing
|
9,157,506
|
|
|||||
|
14.
Federal funds purchased and securities sold under agreements to
repurchase:
|
|
||||||
|
a.
Federal funds purchased in domestic offices
|
3,299,790
|
|
|||||
|
b.
Securities sold under agreements to repurchase
|
3,191,838
|
|
|||||
|
15.
Trading liabilities
|
|
|
|
|
|
286,043
|
|
|
16.
Other borrowed money (includes mortgage indebtedness and obligations
under
capitalized leases)
|
|
|
|
|
|
4,730,659
|
|
|
17.
and 18. Not applicable
|
|
|
|
|
|
|
|
|
19.
Subordinated notes and debentures
|
|
|
|
|
|
1,518,373
|
|
|
20.
Other liabilities
|
|
|
|
|
|
1,721,921
|
|
|
|
|
|
|
|
|
|
|
|
21.
Total liabilities
|
|
|
|
|
116,665,292
|
|
|
|
|
|
|
|
|
|
|
|
|
22.
Minority interest in consolidated subsidiaries
|
|
|
|
|
|
295,298
|
|
|
|
|
|
|
|
|
|
|
|
EQUITY
CAPITAL
|
|
|
|
|
|
|
|
|
23.
Perpetual preferred stock and related surplus
|
|
|
|
|
|
0
|
|
|
24.
Common stock
|
|
|
|
|
|
103
|
|
|
25.
Surplus (exclude all surplus related to preferred stock)
|
|
|
|
|
|
17,859,010
|
|
|
26. a.
Retained
earnings
|
|
|
|
|
|
3,978,063
|
|
|
b.
Accumulated other comprehensive income
|
|
|
|
|
|
(129,818)
|
|
|
27.
Other equity capital components
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
28.
Total equity capital
|
|
|
|
|
|
21,707,358
|
|
|
|
|
|
|
|
|
|
|
|
29.
Total liabilities, minority interest, and equity capital
|
|
|
|
|
$
|
138,667,958
|
|