THEREOF OR THE DISTRICT OF COLUMBIA AND
EXPRESSLY ASSUMES BY SUPPLEMENTAL INDENTURE ALL OF THE OBLIGATIONS OF THE
COMPANY UNDER THE INDENTURE AND THE NOTES AND THE REGISTRATION RIGHTS AGREEMENT;
(B)
IMMEDIATELY AFTER GIVING EFFECT TO THE TRANSACTION, NO EVENT OF
DEFAULT AND NO DEFAULT HAS OCCURRED AND IS CONTINUING; AND
37
(C)
THE COMPANY DELIVERS TO THE TRUSTEE AN OFFICERS' CERTIFICATE AND
AN OPINION OF COUNSEL, EACH STATING THAT THE CONSOLIDATION, MERGER, TRANSFER OR
LEASE AND THE SUPPLEMENTAL INDENTURE (IF ANY) COMPLY WITH THE INDENTURE;
PROVIDED, HOWEVER, THAT IN THE EVENT OF A CONSOLIDATION OR MERGER OF A
WHOLLY-OWNED SUBSIDIARY OF THE COMPANY WITH AND INTO THE COMPANY, THE COMPANY
SHALL NOT BE REQUIRED TO DELIVER SUCH CERTIFICATE OR OPINION.
(B)
UPON THE CONSUMMATION OF ANY TRANSACTION EFFECTED IN ACCORDANCE
WITH THESE PROVISIONS, IF THE COMPANY IS NOT THE CONTINUING PERSON, THE
RESULTING, SURVIVING OR TRANSFEREE PERSON WILL SUCCEED TO, AND BE SUBSTITUTED
FOR, AND MAY EXERCISE EVERY RIGHT AND POWER OF, THE COMPANY UNDER THE INDENTURE
AND THE NOTES WITH THE SAME EFFECT AS IF SUCH SUCCESSOR PERSON HAD BEEN NAMED AS
THE COMPANY IN THE INDENTURE.
UPON SUCH SUBSTITUTION, EXCEPT IN THE CASE OF A
LEASE, UNLESS THE SUCCESSOR IS ONE OR MORE OF THE COMPANY'S SUBSIDIARIES, THE
COMPANY WILL BE RELEASED FROM ITS OBLIGATIONS UNDER THE INDENTURE AND THE NOTES.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.01
Events of Default.
An "Event of Default" occurs with
respect to the Notes if:
(A)
THE COMPANY DEFAULTS IN THE PAYMENT OF THE PRINCIPAL OF ANY NOTE,
OR ANY FUNDAMENTAL CHANGE PURCHASE PRICE WHEN THE SAME BECOMES DUE AND PAYABLE
ON THE MATURITY DATE, ON THE FUNDAMENTAL CHANGE PURCHASE DATE, UPON
ACCELERATION, OR OTHERWISE;
(B)
THE COMPANY FAILS TO PROVIDE THE NOTICE REQUIRED BY
SECTION 3.01(B) OR 3.10(B) ON A TIMELY BASIS;
(C)
THE COMPANY DEFAULTS IN THE PAYMENT OF INTEREST ON ANY NOTE WHEN
THE SAME BECOMES DUE AND PAYABLE, AND THE DEFAULT CONTINUES FOR A PERIOD OF 30
DAYS;
(D)
THE COMPANY FAILS TO DELIVER ALL CASH AND ANY SHARES OF COMMON
STOCK WHEN SUCH CASH AND COMMON STOCK, IF ANY, ARE REQUIRED TO BE DELIVERED UPON
CONVERSION OF A NOTE AND THE COMPANY DOES NOT REMEDY SUCH DEFAULT WITHIN 10
DAYS;
(E)
THE COMPANY FAILS TO COMPLY WITH ANY OTHER COVENANT OR AGREEMENT
OF THE COMPANY IN THE INDENTURE, THE NOTES, THE REGISTRATION RIGHTS AGREEMENT OR
THE PURCHASE AGREEMENT AND THE DEFAULT OR BREACH CONTINUES FOR A PERIOD OF 60
CONSECUTIVE DAYS (OR 120 CONSECUTIVE DAYS IN THE CASE OF A FAILURE TO COMPLY
WITH SECTION 4.04 (GIVING EFFECT TO ANY GRACE PERIOD PROVIDED BY RULE 12B-25
UNDER THE EXCHANGE ACT)) AFTER RECEIPT OF WRITTEN NOTICE TO THE COMPANY BY THE
TRUSTEE OR TO THE COMPANY AND THE TRUSTEE BY THE HOLDERS OF 25% OR MORE IN
AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING.
(F)
(I) THE FAILURE BY THE COMPANY OR ANY SUBSIDIARY TO MAKE ANY
PAYMENT BY THE END OF ANY APPLICABLE