(II) THE MAXIMUM MANDATORY
REDEMPTION OR MANDATORY REPURCHASE PRICE WITH RESPECT TO SUCH PREFERRED STOCK,
IN EACH CASE, AT THE DATE OF DETERMINATION, WHICHEVER IS GREATER.
ARTICLE II
The Notes
SECTION 2.1.
FORM, DATING AND TERMS.
(A)
THE AGGREGATE PRINCIPAL AMOUNT OF NOTES THAT MAY BE AUTHENTICATED
AND DELIVERED UNDER THIS INDENTURE IS UNLIMITED.
THE INITIAL NOTES ISSUED ON
THE ISSUE DATE WILL BE IN AN AGGREGATE PRINCIPAL AMOUNT OF $350,000,000.
IN
ADDITION, THE COMPANY MAY ISSUE, FROM TIME TO TIME IN ACCORDANCE WITH THE
PROVISIONS OF THIS INDENTURE, INCLUDING SECTION 3.3, ADDITIONAL NOTES AND
EXCHANGE NOTES.
FURTHERMORE, NOTES MAY BE AUTHENTICATED AND DELIVERED UPON
REGISTRATION OR TRANSFER, OR IN LIEU OF, OTHER NOTES PURSUANT TO SECTION 2.6,
2.8, 2.9, 5.8 OR 9.5 OR IN CONNECTION WITH AN ASSET SALE OFFER PURSUANT TO
SECTION 3.7 OR A CHANGE OF CONTROL OFFER PURSUANT TO SECTION 3.9.
With respect to any Additional Notes, the Issuers shall set forth in a Board
Resolution and an Officer's Certificate, the following information:
(1)
THE AGGREGATE PRINCIPAL AMOUNT OF SUCH ADDITIONAL NOTES TO BE
AUTHENTICATED AND DELIVERED PURSUANT TO THIS INDENTURE;
33
(2)
THE ISSUE PRICE AND THE ISSUE DATE OF SUCH ADDITIONAL NOTES,
INCLUDING THE DATE FROM WHICH INTEREST SHALL ACCRUE; AND
(3)
WHETHER SUCH ADDITIONAL NOTES SHALL BE RESTRICTED NOTES ISSUED IN
THE FORM OF EXHIBIT A HERETO AND/OR SHALL BE ISSUED IN THE FORM OF EXHIBIT B
HERETO.
The Initial Notes, the Additional Notes and the Exchange Notes shall be
considered collectively as a single class for all purposes of this Indenture.
Holders of the Initial Notes, the Additional Notes and the Exchange Notes will
vote and consent together on all matters to which such Holders are entitled to
vote or consent as one class, and none of the Holders of the Initial Notes, the
Additional Notes or the Exchange Notes shall have the right to vote or consent
as a separate class on any matter to which such Holders are entitled to vote or
consent.
(B)
THE INITIAL NOTES ARE BEING OFFERED AND SOLD BY THE ISSUERS
PURSUANT TO A PURCHASE AGREEMENT, DATED NOVEMBER 21, 2005, AMONG THE ISSUERS,
THE GUARANTORS, LEHMAN BROTHERS INC., CREDIT SUISSE FIRST BOSTON LLC AND THE
OTHER INITIAL PURCHASERS NAMED THEREIN.
THE INITIAL NOTES AND ANY ADDITIONAL
NOTES THAT ARE NOT ISSUED IN AN OFFER REGISTERED UNDER THE SECURITIES ACT
("ADDITIONAL RESTRICTED NOTES") WILL BE RESOLD INITIALLY ONLY TO (A) QUALIFIED
INSTITUTIONAL BUYERS (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")) IN RELIANCE ON RULE 144A ("QIBS") AND (B) PERSONS OTHER THAN U.S.
PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"))
IN RELIANCE ON REGULATION S.
SUCH INITIAL NOTES AND ADDITIONAL RESTRICTED NOTES
THEREAFTER MAY BE TRANSFERRED TO, AMONG OTHERS, QIBS AND PURCHASERS IN RELIANCE
ON REGULATION S IN ACCORDANCE WITH THE PROCEDURES DESCRIBED HEREIN.
Initial Notes and Additional Restricted Notes offered and sold to QIBs in the
United States of America in reliance on Rule 144A (the "Rule