SPF » Topics » The Notes

This excerpt taken from the SPF 8-K filed Sep 28, 2007.

The Notes

SECTION 2.01. Designation, Amount and Issuance of Notes. The Notes shall be designated as “6% Convertible Senior Subordinated Notes due 2012”. The Notes will not exceed the aggregate principal amount of $100,000,000 (or the lesser of (i) $115,000,000 and (ii) $100,000,000 plus the principal amount of Notes to be purchased pursuant to the Underwriters’ over-allotment option pursuant to the Underwriting Agreement). Upon the execution of this Third Supplemental Indenture, or from time to time thereafter, Notes may be executed by the Company and delivered to the Trustee for authentication. The Notes and the Guarantees are pari passu with the Existing Senior Subordinated Notes (and its guarantees).

SECTION 2.02. Form of the Notes. The Notes, the Trustee’s certificate of authentication to be borne by such Notes and the Guarantee shall be substantially in the form set forth in Exhibit A hereto. The terms and provisions attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Third Supplemental Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Third Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. In the event of any inconsistency between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall control.

So long as the Notes are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, all of the Notes will be represented by one or more Notes in global form registered in the name of the Depositary or the nominee of the Depositary (“Global Notes”). The transfer and exchange of beneficial interests in any such Global Notes shall be effected through the Depositary in accordance with the Indenture and the applicable procedures of the Depositary. Except as set forth in the Original Indenture, beneficial owners of a Global Note shall not be entitled to have certificates registered in their names, will not receive or be entitled to receive physical delivery of certificates in definitive form and will not be considered Holders of such Global Note.

Any Global Notes shall represent such of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the custodian for the Global Note, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with the Indenture. Payment of principal of, interest on and premium, if any, on any Global Notes shall be made to the Depositary in immediately available funds.



SECTION 2.03. Conversion. The Notes shall be convertible in accordance with the provisions set forth in the Notes and this Third Supplemental Indenture, including Article 10 hereof.

SECTION 2.04. Date and Denomination of Notes; Payment at Maturity; Payment of Interest.

(a) Date and Denomination. The Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Notes attached as Exhibit A hereto.

(b) Payment at Maturity. The Notes shall mature on October 1, 2012, unless earlier converted or repurchased in accordance with the provisions hereof. On the Maturity Date, each Holder shall be entitled to receive on such date $1,000 in cash for each $1,000 principal amount of Notes, together with accrued and unpaid interest to, but not including, the Maturity Date. With respect to Global Notes, principal and interest will be paid to the Depositary in immediately available funds. With respect to any certificated Notes, principal and interest will be payable at the Company’s office or agency in New York City, which initially will be the office or agency of the Trustee located at c/o The Bank of New York, 101 Barclay Street, New York, NY 10286, Attention: Trust Services Window. If the Maturity Date is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue on the Notes for the intervening period.

(c) Payment of Interest. Interest on the Notes will accrue at the rate of 6.0% per annum, from September 28, 2007 until the principal thereof is paid or made available for payment. Interest shall be payable on April 1 and October 1 of each year (each, an “Interest Payment Date”), commencing April 1, 2008, to the Person in whose name any Note is registered on the Register at the close of business on any Regular Record Date with respect to the applicable Interest Payment Date. Except as provided in this Section 2.04(c), upon conversion of Notes pursuant to Article 10, Holders shall not receive any additional cash payment or shares of Common Stock for accrued and unpaid interest on the Notes. Upon conversion, accrued and unpaid interest to the Conversion Date is deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, a Holder of Notes as of a Regular Record Date that are converted after the close of business on such Record Date and prior to the applicable Interest Payment Date shall receive interest on the principal amount of such Notes, notwithstanding the conversion of such Notes prior to such Interest Payment Date. Any Notes or portion thereof surrendered for conversion after the close of business on the Regular Record Date for an Interest Payment Date but prior to the applicable Interest Payment Date shall be accompanied by payment, in immediately available funds or other funds acceptable to the Company, of an amount equal to the interest otherwise payable on such Interest Payment Date on the principal amount being converted; provided that no such payment need be made:

(i) with respect to conversions after the close of business on September 15, 2012;



(ii) if the Company has specified a Fundamental Change Repurchase Date pursuant to Section 10.01(3)(B) that is after a Regular Record Date but on or prior to the first Scheduled Trading Day immediately succeeding the related Interest Payment Date; or

(iii) with respect to any overdue interest, if overdue interest exists at the time of conversion with respect to such Notes.

Interest on the Notes will be computed on the basis of a three-hundred sixty (360)-day year comprised of twelve (12) thirty (30)-day months.

The Company shall pay interest on:

(i) any Global Notes by wire transfer of immediately available funds to the account of the Depositary or its nominee;

(ii) any Notes in certificated form having a principal amount of less than $5,000,000, by check mailed to the address of the Person entitled thereto as it appears in the Register; and

(iii) any Notes in certificated form having a principal amount of $5,000,000 or more, by wire transfer in immediately available funds at the election of the Holder duly delivered to the trustee at least five (5) Business Days prior to the relevant Interest Payment Date.

If an Interest Payment Date is not a Business Day, payment shall instead be made on the next succeeding Business Day, and no additional interest shall accrue on the Notes for the intervening period.

SECTION 2.05. Registrar and Paying Agent. The Registrar shall keep a register of the Notes (the “Register”) and of their transfer and exchange. The Company initially appoints the Trustee as (i) Registrar and Paying Agent in connection with the Notes, (ii) the custodian with respect to the Global Notes, (iii) Conversion Agent and (iv) Bid Solicitation Agent.

SECTION 2.06. Exchange and Registration of Transfer of Notes. The Company shall cause to be kept at the Corporate Trust Office the Register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time. Neither the Company nor the Trustee nor any Registrar shall be required to exchange, issue or register a transfer of (a) any Note or portions thereof surrendered for conversion pursuant to Article 10 or (b) any Note or portions thereof tendered for repurchase (and not withdrawn) pursuant to Article 3.




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