1
EXHIBIT 4.3
================================================================================
SIGNATURE RESORTS, INC.
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Trustee
INDENTURE
Dated as of April 15, 1998
$140,000,000
9.25% Senior Notes due May 15, 2006
================================================================================
2
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 1, 1997*****
Trust
Indenture
Act Indenture
Section Section
--------- ----------
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08, 6.01
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01, 7.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.03(b)
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.02
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02, 7.03(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(a)(i)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(ii)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01(c)(iii)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.08
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.07
----------
*** Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
3
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . 26
Section 1.03. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . 27
Section 1.04. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 1.05. Notices, Etc., to Trustee and Company. . . . . . . . . . . . . . . . . . . . . . . 30
Section 1.06. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 1.07. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 1.08. Book-Entry System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 1.09. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . 31
Section 1.10. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 1.11. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 1.12. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 1.13. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 1.14. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 1.15. Immunity of Incorporators, Stockholders, Officers and Directors. . . . . . . . . . 32
ARTICLE 2 NOTE FORMS
Section 2.01. Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.02. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.03. Execution and Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.04. Registrar and Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.05. Paying Agent To Hold Money in Trust. . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.06. Noteholder Lists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.07. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.08. Replacement Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 2.09. Outstanding Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 2.10. Temporary Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 2.13. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 2.14. Restrictive Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 3 THE NOTES
Section 3.01. Title and Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 3.02. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 3.03. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . 54
Section 3.04. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 3.05. Computation of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
i
4
Page
----
ARTICLE 4 SATISFACTION AND DISCHARGE; DEFEASANCE
Section 4.01. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . 56
Section 4.02. Option To Effect Legal Defeasance
Or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.03. Legal Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.04. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 4.05. Conditions to Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 4.06. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE 5 DEFAULTS AND REMEDIES
Section 5.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . 62
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 5.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 5.05. Trustee May Enforce Claims Without
Possession of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 5.06. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 5.07. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 5.08. Unconditional Right of Holders To
Receive Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.09. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.10. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 5.11. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.12. Control by Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.13. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 5.14. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 5.15. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE 6 THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.02. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.03. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.04. Not Responsible for Recitals or Issuance of Notes. . . . . . . . . . . . . . . . . 71
Section 6.05. May Hold Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 6.06. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.07. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 6.08. Disqualification; Conflicting Interests. . . . . . . . . . . . . . . . . . . . . . 72
Section 6.09. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . . . . . . 72
Section 6.10. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . 73
Section 6.11. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . . . . . 74
Section 6.12. Merger, Consolidation or Succession to Business. . . . . . . . . . . . . . . . . . 75
Section 6.13. Preferential Collection of Claims Against Company. . . . . . . . . . . . . . . . . 75
Section 6.14. Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . 75
ii
5
Page
----
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 7.02. Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.03. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.04. Reports by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . . . . . 79
Section 8.02. Successor Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE 9 SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . . . . . 80
Section 9.02. Supplemental Indentures with Consent of Holders. . . . . . . . . . . . . . . . . . 80
Section 9.03. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.04. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.05. Conformity with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.06. Reference in Notes to Supplemental Indentures. . . . . . . . . . . . . . . . . . . 82
Section 9.07. Notice of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE 10 COVENANTS
Section 10.01. Payment of Principal and Interest. . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.03. Money for Note Payments to Be Held in Trust. . . . . . . . . . . . . . . . . . . . 83
Section 10.04. Statement by Officers as to Default. . . . . . . . . . . . . . . . . . . . . . . . 84
Section 10.05. Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.06. Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.07. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 10.08. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10.09. Book-Entry System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10.10. Limitation on Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 10.11. Limitation on Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 10.12. Limitation on Restrictions on Distributions
from Restricted Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.13. Limitation on Sales of Assets
and Subsidiary Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 10.14. Limitation on Affiliate Transactions. . . . . . . . . . . . . . . . . . . . . . . 96
Section 10.15. Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 10.16. Further Instruments and Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 10.17. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 10.18. Commission Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE 11 REDEMPTION OF NOTES
iii
6
Page
----
Section 11.01. Right of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 11.02. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 11.03. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . 102
Section 11.04. Selection by Trustee of Notes To Be Redeemed. . . . . . . . . . . . . . . . . . 102
Section 11.05. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 11.06. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 11.07. Notes Payable on Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . 103
Section 11.08. Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
iv
7
INDENTURE, dated as of April 15, 1998, between Signature
Resorts, Inc., a corporation duly organized and existing under the laws of the
State of Maryland (herein called the "Company"), having its principal office at
San Mateo, California, and Norwest Bank Minnesota, National Association, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 9.25% Senior Notes due May 15, 2006 (herein called the "Notes") of
substantially the tenor and amount 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 Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, 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 Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles; and
8
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Accredited Investor" has the meaning set forth in Rule
501(a)(1),(2), (3) or (7) of the Securities Act.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Assets" means (i) any property or assets (other
than Indebtedness and Capital Stock) in a Related Business; (ii) the Capital
Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; provided, however, that any such Restricted Subsidiary is primarily
engaged in a Related Business; (iii) additions to property, plant and equipment
of the Company and its Restricted Subsidiaries; and (iv) investments in
Receivables and Related Assets.
"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 the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent Member" means any member of, or participant in, the
Depository.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depository, Euroclear or Cedel Bank, as the case may be,
for such Global Note to the extent applicable to such transaction and as in
effect from time to time.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares and,
to the extent required by local ownership laws in foreign countries, shares
owned by foreign shareholders), (ii) all or substantially all the assets of any
division, business segment or comparable line of business of the Company or any
Restricted Subsidiary or (iii) any other assets of the Company or any
Restricted Subsidiary outside of
2
9
the ordinary course of business of the Company or such Restricted Subsidiary.
Notwithstanding the foregoing, the term "Asset Disposition" shall not include
(w) sales, in the ordinary course of business, of Vacation Intervals, points in
a points based vacation club system or Receivables and Related Assets, (x) a
disposition by a Restricted Subsidiary to the Company or by the Company or a
Restricted Subsidiary to a Restricted Subsidiary, (y) for purposes of the
covenant described under Section 10.13, a disposition that constitutes a
Permitted Investment or a Restricted Payment permitted by the covenant
described under Section 10.11, and (z) a disposition of assets having a fair
market value of less than $1 million.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate implicit in such transaction in accordance with GAAP) of the
total obligations of the lessee for rental payments during the remaining term
of the lease included in such Sale/Leaseback Transaction (including any period
for which such lease has been extended).
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Notes.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such
Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Broker-Dealer" shall mean any broker or dealer registered
under the 1934 Act.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means an obligation that is
required to be classified and accounted for as a capital lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP;
3
10
and the Stated Maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Cash Equivalents" means (a) securities with maturities of one
year or less from the date of acquisition, issued, fully guaranteed or insured
by the United States Government or any agency thereof, (b) certificates of
deposit, time deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements issued by a Qualified Issuer having maturities of 270
days or less from the date of acquisition, (c) commercial paper of an issuer
rated at least A-2 by Standard & Poor's Corporation or P-2 by Xxxxx'x Investors
Service, Inc., or carrying an equivalent rating by a nationally recognized
rating agency if both of the two named rating agencies cease publishing ratings
of investments, and having maturities of 270 days or less from the date of
acquisition, and (d) money market accounts or funds with or issued by Qualified
Issuers.
"Certificated Notes" means Restricted Certificated Notes and
Unrestricted Certificated Notes.
"Change of Control" means the occurrence of any of the
following events:
(i) the acquisition by any Person (including any
syndicate or group deemed to be a "person" under Section 13(d)(3) of
the Exchange Act) of beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction or series
of transactions, of shares of capital stock of the Company entitling
such Person to exercise 50% or more of the total voting power of all
shares of capital stock of the Company entitled to vote generally in
elections of directors (other than any such acquisition by the
Company, any Subsidiary of the Company or any employee benefit plan of
the Company); or
(ii) any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into
the Company, or any conveyance, sale, transfer or lease, in one
transaction or a series of related transactions, of all or
substantially all of the assets (other than to a Restricted Subsidiary
of the Company) of the Company to any other Person (other than (a) any
such transaction pursuant to which the holders of 50% or more of the
total voting power of all shares of capital stock of the Company
entitled to vote
4
11
generally in elections of directors immediately prior to such
transaction have, directly or indirectly, at least 50% or more of the
total voting power of all shares of capital stock of the continuing or
surviving corporation entitled to vote generally in elections of
directors of the continuing or surviving corporation immediately after
such transaction, and (b) a merger (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock, or (y) which is effected solely to change the
jurisdiction of incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares of
Common Stock solely into shares of common stock); or
(iii) a change in the Board of Directors of the Company in
which the individuals who constituted the Board of Directors of the
Company at the beginning of the 12-month period immediately preceding
such change (together with any other director whose election by the
Board of Directors of the Company or whose nomination for election by
the stockholders of the Company was approved by a vote of at least a
majority of the directors then in office either who were directors at
the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of the directors then in office.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument unless and until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) its Chairman of the Board,
its President or a Vice President, and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA for the period of the
most recent four consecutive fiscal quarters ending at least 45 days (or, if
less, the number of days after the end of such
5
12
fiscal quarter as the consolidated financial statements of the Company shall be
available) prior to the date of such determination to (ii) Consolidated
Interest Expense for such four fiscal quarters; provided, however, that (1) if
the Company or any Restricted Subsidiary has Incurred any Indebtedness since
the beginning of such period that remains outstanding on such date of
determination or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Indebtedness as if such Indebtedness
had been Incurred on the first day of such period and the discharge of any
other Indebtedness repaid, repurchased, defeased or otherwise discharged with
the proceeds of such new Indebtedness as if such discharge had occurred on the
first day of such period (except that, in the case of Indebtedness used to
finance working capital needs incurred under a revolving credit or similar
arrangement, the amount thereof shall be deemed to be the average daily balance
of such Indebtedness during such four-fiscal-quarter period), (2) if since the
beginning of such period the Company or any Restricted Subsidiary shall have
made any Asset Disposition, the EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable to the assets
which are the subject of such Asset Disposition for such period, or increased
by an amount equal to the EBITDA (if negative) directly attributable thereto
for such period, and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted Subsidiary
repaid, repurchased, defeased, assumed by a third person (to the extent the
Company and its Restricted Subsidiaries are no longer liable for such
Indebtedness) or otherwise discharged with respect to the Company and its
continuing Restricted Subsidiaries in connection with such Asset Disposition
for such period (or, if the Capital Stock of any Restricted Subsidiary is sold,
the Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such sale), (3) if since the beginning of such period the Company shall
have consummated an Equity Offering, Consolidated Interest Expense for such
period shall be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with respect
to the Company and its Restricted Subsidiaries in connection with such Equity
Offering for such period, (4) if since the beginning of such period the Company
or any Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of assets which acquisition
constitutes all or substantially all of an operating unit of a business,
including any such Investment or acquisition occurring in connection with a
transaction requiring a calculation to be made hereunder, EBITDA and Xxxxxxx-
6
13
dated Interest Expense for such period shall be calculated after giving pro
forma effect thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition occurred on the first day of such period and (5) if
since the beginning of such period any Person (that subsequently became a
Restricted Subsidiary or was merged with or into the Company or any Restricted
Subsidiary since the beginning of such period) shall have made any Asset
Disposition, any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (3) or (4) above if made by the Company or a
Restricted Subsidiary during such period, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto as if such Asset Disposition, Investment or acquisition occurred on the
first day of such period. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such Indebtedness
shall be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest Rate
Agreement has a remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus to the extent not included in such total interest expense,
and to the extent incurred by the Company or its Restricted Subsidiaries, (i)
interest expense attributable to Capital Lease Obligations, (ii) amortization
of debt discount, (iii) capitalized interest, (iv) non-cash interest expenses,
(v) commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing, (vi) net costs associated
with Hedging Obligations (including amortization of fees), (vii) Preferred
Stock dividends in respect of all Preferred Stock held by Persons other than
the Company or a Wholly-Owned Subsidiary and (viii) interest actually paid on
any Indebtedness of any other Person that is Guaranteed by the Company or any
Restricted Subsidiary.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated Subsidiaries; provided, however,
that there shall not be included in such Consolidated Net Income: (i) any net
income (or loss) of any Person if such Person is not a Restricted Subsidiary,
except that the Company's equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution; (ii)
for purposes of subclause (a)(iii)(A) of Section 10.11 only, any net income (or
loss) of any Person acquired by the Company or a Subsidiary in a pooling of
interests transaction for any period prior to the date of such acquisition;
(iii) any net income of any Restricted Subsidiary if such Restricted Subsidiary
is subject to restrictions, directly or indirectly, on the payment of dividends
or
7
14
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that (A) the Company's equity in the net
income of any such Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash that could have
been distributed by such Restricted Subsidiary consistent with such restriction
during such period to the Company or another Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution paid to another Restricted Subsidiary, to the limitation contained
in this clause) and (B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in determining such
Consolidated Net Income; (iv) any gain (or loss) realized upon the sale or
other disposition of any assets of the Company or its consolidated Subsidiaries
(including pursuant to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any gain (or loss)
realized upon the sale or other disposition of any Capital Stock of any Person;
(v) extraordinary gains or losses; and (vi) the cumulative effect of a change
in accounting principles. Notwithstanding the foregoing, for the purposes of
Section 10.11 only, there shall be excluded from Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of assets from
Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the
extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under Section 10.11 pursuant to clause
(a)(iii)(D) thereof.
"Convertible Notes" means the 5 3/4% Convertible Notes due
2007 issued pursuant to an indenture dated January 15, 1997 by and between the
Company and Norwest Bank Minnesota, National Association, as trustee, as the
same may be amended, waived, modified or replaced from time to time, provided
such amendment, waiver, modification or replacement does not shorten the
maturity, increase the principal amount outstanding, or change the
subordination provisions in a manner that makes them less subordinated.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Credit Agreements" means the Senior Credit Facility and any
credit agreement or similar facility or any other agreement governing
Indebtedness entered into by the Company or any Restricted Subsidiary, as any
of the same may be amended, waived, modified, Refinanced or replaced from time
to time (except to the extent that any such amendment, waiver, modification,
replacement or Refinancing would be prohibited by the terms of the Indenture).
8
15
"Currency Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement
to which such Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section
3.03.
"Depository" means The Depository Trust Company, a New York
corporation and its nominees and their respective successors.
"Designated Noncash Consideration" means the fair market value
of noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate, which
sets forth the basis of such valuation and is executed by the principal
executive officer and the principal financial officer of the Company, less the
amount of cash or Cash Equivalents received in connection with a sale of such
Designated Noncash Consideration.
"Direct Participants" means any participating organization of
the Depository Trust Company.
"Disqualified Capital Stock" means with respect to any person,
Capital Stock of such Person that, by its terms or by the terms of any security
into which it is convertible, exercisable or exchangeable, is, or upon the
happening of an event or the passage of time would be, required to be redeemed
or repurchased (including at the option of the holder thereof) by such person
or any of its Subsidiaries, in whole or in part, on or prior to the Stated
Maturity of the Notes; provided, however, that any Preferred Stock issued by a
Finance Subsidiary shall not constitute Disqualified Capital Stock.
"EBITDA" for any period means the sum of Consolidated Net
Income plus Consolidated Interest Expense plus, without duplication, the
following to the extent deducted in calculating such Consolidated Net Income:
(i) income tax expense, (ii) depreciation expense, (iii) amortization expense,
(iv) non-recurring charges incurred as a result of business combinations and
(v) all other non-cash items reducing Consolidated Net Income (other than items
that will require cash payments and for which an accrual or reserve is, or is
required by GAAP to be, made), less all non-cash items increasing Consolidated
Net Income, in each case for such period. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the depreciation and
amortization of, a Subsidiary of the Company shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same proportion)
9
16
that the net income of such Subsidiary was included in calculating Consolidated
Net Income.
"Equity Offering" means a primary offering (either public or
private) of any Capital Stock of the Company.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder.
"Exchanging Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Notes" means another series of Senior Indebtedness
of the Company registered under the Securities Act with terms substantially
identical to the terms of the Private Placement Notes governed hereby which
will be exchanged pursuant to a registration statement.
"Expiration Date" has the meaning specified in Section
1.04(f).
"Exchange Offer" means the offer that may be made by the
Company pursuant to the Registration Rights Agreement to exchange Private
Placement Notes for Exchange Notes.
"Finance Subsidiary" means any Subsidiary of the Company
organized for the sole purpose of issuing Capital Stock and loaning the
proceeds thereof to the Company and which engages in no other transactions
except those incidental thereto.
"Finance Subsidiary Indebtedness" means Indebtedness of the
Company owed to and held by a Finance Subsidiary which Indebtedness (a) has a
maturity date after the maturity date of the Convertible Notes and (b) is
subordinated in right of payment to the Convertible Notes.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board and (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Guarantee" means (a) any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person, and (b) any
10
17
obligation, direct or indirect, contingent or otherwise, of any Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) any
Indebtedness or other obligation of any other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner any Indebtedness or other obligation (for the
payment thereof) of any other Person or to protect any other Person against
loss in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning. The term "Guarantor" shall mean any Person Guaranteeing
any obligation.
"Global Note" means, individually and collectively, the
Regulation S Global Note, the Rule 144A Global Note and the Unrestricted Global
Note.
"Global Note Legend" means the legend initially set forth on
the Global Note in the form set forth in Section 2.14.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means a Person in whose name a Note
is registered on the Note Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary; provided, further,
however, that in the case of a discount security, neither the accrual of
interest nor the accretion of original issue discount shall be considered an
Incurrence of Indebtedness, but the entire face amount of such security shall
be deemed Incurred upon the issuance of such security. The term "Incurrence"
when used as a noun shall have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication), (i) the principal of and premium (if
any) in respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable; (ii) all Capital
Lease Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person; (iii) all obligations
of such Person issued or assumed as the deferred
11
18
purchase price of property or services, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business and which are not more than 90 days past due and not in dispute),
which purchase price or obligation is due more than six months after the date
of placing such property in service or taking delivery and title thereto or the
completion of such services (provided that, in the case of obligations of an
acquired Person assumed in connection with an acquisition of such Person, such
obligations would constitute Indebtedness of such Person); (iv) all obligations
of such Person for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the tenth Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit); (v) the amount of all
obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Capital Stock or, with respect to any Subsidiary
of such Person (other than a Finance Subsidiary), any Preferred Stock (but
excluding, in each case, any accrued dividends); (vi) all obligations of the
type referred to in clauses (i) through (v) of other Persons and all dividends
of other Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including by means of any Guarantee; (vii) all obligations of the
type referred to in clauses (i) through (vi) of other Persons secured by any
Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; and (viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person. Notwithstanding the foregoing, (i) any
Guarantee of any obligations of a Joint Venture or a Finance Subsidiary given
by or entered into by any Person shall not constitute, or be deemed to be the
Incurrence of, any Indebtedness of such Person, provided, such Guarantee would
be permitted under Section 10.11 hereof and (ii) any obligation, contingent or
otherwise, of any Person arising as a result of such Person's ownership of, or
control over, the Capital Stock of another Person, shall not constitute, or be
deemed to be the Incurrence of, Indebtedness of such Person, provided, the
Incurrence of such obligation would be permitted under Section 10.11. The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and
the maximum liability, upon the occurrence of the contingency giving rise to
the obligation, of any contingent obligations as described above at such date;
provided, however, that
12
19
the amount outstanding at any time of any Indebtedness issued with original
issue discount shall be deemed to be the face amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indirect Participants" means any entity that clears through
or maintains a direct or indirect, custodial relationship with a Direct
Participant.
"Initial Purchasers" means Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, NationsBanc Xxxxxxxxxx Securities LLC, BT Alex. Xxxxx
Incorporated, Salomon Brothers Inc and Societe Generale Securities Corporation.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Restricted Subsidiary
against fluctuations in interest rates.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances or loans to customers or other Persons in
the ordinary course of business that are recorded as accounts or mortgages
receivable on the balance sheet of such Person) or other extension of credit
(including by way of Guarantee or similar arrangement) or capital contribution
to (by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by such Person. For purposes of the definition of "Unrestricted Subsidiary,"
the definition of "Restricted Payment" and the covenant described in Section
10.11 hereof, (i) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of the
net assets of any Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) the Company's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time of such
redesignation; and (ii) any property
13
20
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors.
"Issue Date" means the date on which the Notes are originally
issued.
"Joint Venture" means a corporation, partnership or other
entity engaged in a Related Business as to which the Company (directly or
through one or more Restricted Subsidiaries) owns any Capital Stock.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Mortgages Receivable" means the gross mortgages receivable of
the Company and its Restricted Subsidiaries (including any mortgages receivable
acquired as a result of any business combination) determined on a consolidated
basis in accordance with GAAP.
"Net Available Cash" from an Asset Disposition means cash
payments received by the Company or any of its Subsidiaries therefrom
(including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable or otherwise, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations
relating to such properties or assets or received in any other noncash form) in
each case net of (i) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under
GAAP, as a consequence of such Asset Disposition, (ii) all payments made on any
Indebtedness which is secured by any assets subject to such Asset Disposition,
in accordance with the terms of any Lien upon or other security agreement of
any kind with respect to such assets, or which must by its terms, or in order
to obtain a necessary consent to such Asset Disposition, or by applicable law,
be repaid out of the proceeds from such Asset Disposition, (iii) all
distributions and other payments required to be made to minority interest
holders in Subsidiaries or Joint Ventures as a result of such Asset Disposition
and (iv) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with the
property or other assets disposed of in such Asset Disposition and retained by
the Company or any Restricted
14
21
Subsidiary after such Asset Disposition, including without limitation
liabilities under any indemnification obligations associated with such Asset
Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-recourse Debt" means Indebtedness of a Person to the
extent that under the terms thereof and pursuant to applicable law, no personal
recourse could be had against such Person for the payment of the principal of
or interest or premium or any other amounts with respect to such indebtedness
or for any claim based on such indebtedness and that enforcement of obligations
on such indebtedness is limited solely to recourse against interests in
specified assets.
"Note Offering" means the issuance of the Notes by the
Company.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 2.04.
"Notes" shall mean the Private Placement Notes and the
Exchange Notes.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Notes; provided that, if
such Notes are to be redeemed,
15
22
notice of such redemption has been duly given pursuant to this
Indenture or provision therefore satisfactory to the Trustee has been
made; and
(iii) Notes which have been paid pursuant to Section 2.07
or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of 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 Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such securities and that
the pledgee is not the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor. The Trustee may require,
and may conclusively rely upon, an Officers' Certificate as to whether or not
any Notes are so owned.
"Paying Agent" shall have the meaning set forth in Section
2.04 hereof.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (i) the Company, (ii) a Restricted Subsidiary or a
Person that will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such Subsidiary is
a Related Business; (iii) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or conveys
all or substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iv) Temporary Cash Investments; (v) purchases or acquisitions of mortgage
receivables by the Company or any Restricted Subsidiary created or acquired in
the ordinary course of business; (vi) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vii) loans or advances to employees made in the ordinary
course of business consistent with past practices of the Company or such
Restricted Subsidiary; (viii) stock, obligations or securities received in
16
23
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments; (ix)
Persons other than Restricted Subsidiaries that are primarily engaged in a
Related Business, in an aggregate amount (taken together with all Designated
Noncash Consideration at that time outstanding) not to exceed the sum of (1)
10% of the Total Assets of the Company and its Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP and (2) the fair
market value of assets (other than Net Cash Proceeds) received by the Company,
as determined in good faith by the Board of Directors of the Company at the
time of such receipt, from the issuance of its Capital Stock (other than
Disqualified Capital Stock) subsequent to the Issue Date (to the extent
utilized for an Investment, such aggregate amount will be reinstated to the
extent that the Company or any Restricted Subsidiary receives dividends,
repayments of loans or other transfers of assets as a return of such
Investment); and (x) any Person to the extent such Investment represents the
non-cash portion of the consideration received for an Asset Disposition as
permitted pursuant to Section 10.13 hereof; (xi) any Investment existing as of
the Issue Date; (xii) any Investment acquired by the Company or any of its
Restricted Subsidiaries (i) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts receivable
or (ii) as a result of a foreclosure (or deed in lieu of) by the Company or any
of its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default; or (xiii)
Hedging Obligations permitted under clause (7) of Section 10.10.
"Permitted Liens" means any (i) Liens on assets securing
Indebtedness and related obligations incurred under clauses (ii), (vi), (vii),
(viii), (ix), (x), (xi) and (xiii) of the second paragraph of the covenant
described in Section 10.10 hereof, (ii) Liens arising by reason of (1)
operation of law in favor of carriers, warehousemen, landlords, mechanics,
materialmen, laborers, employees or suppliers, incurred in the ordinary course
of business for sums which are not yet delinquent or are being contested in
good faith by negotiations or by appropriate proceedings which suspend the
collection thereof or (2) any interest or title of a lessor under any lease;
(iii) Liens in favor of the Company; (iv) Liens on property of a Person
existing at the time such Person is acquired by, merged into or consolidated
with the Company or any Subsidiary of the Company; provided that such Liens
were in existence prior to the contemplation of such acquisition, merger or
consolidation and do not extend to any assets other than those of the Person
acquired by, merged into or consolidated with the Company; (v) Liens on
property existing at the time of acquisition thereof by the Company or any
Subsidiary of the Company, provided that such Liens were in existence prior to
the contemplation of such acquisition; (vi) Liens arising on any of the
property described in either clause (iv) or
17
24
(v) above, or on any other property of the Company or any Restricted
Subsidiary, in each case securing Indebtedness and related obligations incurred
pursuant to any development or construction agreement or any other similar
agreement relating to such property, provided that such Liens secure
Indebtedness (except, with respect to property not described in either clauses
(iv) or (v) above, Indebtedness that would constitute a security) permitted to
be incurred under the covenant described in Section 10.10 hereof; (vii) Liens
existing on the date of the Indenture; (viii) Liens for taxes, assessments or
governmental charters or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor,
(ix) Liens on assets securing Indebtedness and related obligations incurred
under the Senior Credit Agreements; (x) Liens on assets securing Refinancing
Indebtedness and related obligations in respect of Indebtedness represented by
the Notes and any subsequent Refinancing Indebtedness thereof; (xi) easements,
rights-of-way, restrictions, minor defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the business of the Company or any of its Restricted Subsidiaries; (xii) Liens
pursuant to any judgment, attachment, decree or order of any court provided
that, such Liens do not give rise to an Event of Default; (xiii) Liens on any
Receivables and Related Assets and (xiv) Liens on any asset securing
Non-recourse Debt of the Company or any Restricted Subsidiary; provided, that,
such Non-recourse Debt does not exceed, in the aggregate at any time
outstanding, $50 million.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.16 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock," as applied to the Capital Stock of any
corporation or the equity securities of any trust, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation or trust.
18
25
"principal" of any Indebtedness (including a Note) means the
principal of such Indebtedness plus the premium, if any, payable on such
Indebtedness which is due or overdue or is to become due at the relevant time.
"Private Placement Legend" means the legend initially set
forth on the Notes in the form set forth in Section 2.14.
"Private Placement Notes" means the 9.25% Senior Notes due
2006 of the Company issued on the Issue Date for so long as such Notes
constitute Restricted Securities.
"Purchase Money Indebtedness" mean Indebtedness (i) consisting
of the deferred purchase price of property, conditional sale obligations,
obligations under any title retention agreement, other purchase money
obligations or similar Indebtedness, in each case where the maturity of such
Indebtedness does not exceed the anticipated useful life of the asset being
financed, and (ii) incurred to finance the acquisition by the Company or a
Restricted Subsidiary of such asset, including additions and improvements;
provided, however, that any Lien arising in connection with any such
Indebtedness shall be limited to the specified asset being financed or, in the
case of real property or fixtures, including additions and improvements, the
real property on which such asset is attached; and provided, further, however,
that such Indebtedness is Incurred within 90 days after such acquisition of
such asset by the Company or such Restricted Subsidiary.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Qualified Issuer" means (A) any lender that is a party to any
Credit Agreement; and (B) any commercial bank (i) which has capital and surplus
in excess of $100,000,000, and (ii) the outstanding short-term debt securities
of which are rated at least A-2 by Standard & Poor's Corporation or at least
P-2 by Xxxxx'x Investors Service, Inc., or carry an equivalent rating by a
nationally recognized rating agency if both the two named rating agencies cease
publishing ratings of investments.
"Receivables and Related Assets" means Mortgages Receivable
and instruments, chattel paper, obligations, general intangibles and other
similar assets, in each case relating to such Mortgages Receivable.
"Receivables Subsidiary" means a Restricted Subsidiary which
is established for the limited purpose of acquiring and financing Receivables
and Related Assets.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
19
26
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company or any Restricted Subsidiary existing on the
Issue Date or Incurred in compliance with this Indenture; provided, however,
that (i) in the case of Indebtedness that has a Stated Maturity after the
Stated Maturity of the Notes, such Refinancing Indebtedness has a Stated
Maturity no earlier than the Stated Maturity of the Indebtedness being
Refinanced, (ii) in the case of Indebtedness that has a Stated Maturity after
the Stated Maturity of the Notes, such Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced and (iii)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) that is equal to or
less than the aggregate principal amount (or if Incurred with original issue
discount, the aggregate accreted value) then outstanding or committed (plus
fees and expenses, including any premium and defeasance costs) under the
Indebtedness being Refinanced; provided, further, however, that Refinancing
Indebtedness shall not include (x) Indebtedness of a Subsidiary that Refinances
Indebtedness of the Company or (y) Indebtedness of the Company or a Restricted
Subsidiary that Refinances Indebtedness of an Unrestricted Subsidiary.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Registration Rights Agreement" means the Registration Rights
Agreement dated April 15, 1998, by and among the Company and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global
Note in the form of Exhibit A hereto bearing the Global Note
20
27
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depository or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global
Note in the form of Exhibit A hereto bearing the Private Placement Legend, the
Global Note Legend and the Regulation S Temporary Global Note Legend and
deposited with or on behalf of and registered in the name of the Depository or
its nominee, issued in a denomination equal to the outstanding principal amount
of Notes initially sold in reliance on Rule 903 of Regulation S.
"Regulation S Temporary Global Note Legend" means the legend
initially set forth on the Regulation S Temporary Global Note in the form set
forth in Section 2.14.
"Related Business" means, at any time, any business related,
ancillary or complementary (as determined in good faith by the Board of
Directors) to the businesses conducted by the Company and the Restricted
Subsidiaries at such time.
"Representative" means any trustee, agent or representative
(if any) for an issue of Senior Indebtedness of the Company.
"Repurchase Date" has the meaning specified in Section 10.15.
"Repurchase Price" has the meaning specified in Section 10.15.
"Responsible Officer," when used with respect to the Trustee,
means any officer assigned to and working in the corporate trust department of
the Trustee, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Certificated Notes" means Notes that are in the
form of the Notes attached hereto as Exhibit A, bearing the Private Placement
Legend but not the Global Note Legend.
"Restricted Global Notes" means the Regulation S Global Notes
and the Rule 144A Global Notes.
"Restricted Payment" means, with respect to any Person, (i)
the declaration or payment of any dividends or any other distributions on or in
respect of its Capital Stock (including any
21
28
payment in connection with any merger or consolidation involving such Person)
or similar payment to the holders of its Capital Stock, except dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Capital Stock) and except dividends or distributions payable to the Company or
a Restricted Subsidiary, (ii) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company held by any Person
including the exercise of any option to exchange any Capital Stock (other than
into Capital Stock of the Company that is not Disqualified Capital Stock),
(iii) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Subordinated Obligations of the Company
(other than the purchase, repurchase or other acquisition of Subordinated
Obligations purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of
the date of acquisition) or (iv) the making of any Investment in any Person
(other than a Permitted Investment).
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel
with respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Note" means a permanent Global Note in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depository or its nominee, representing Notes sold in reliance on Rule
144A.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person.
"SEC" means the Securities Exchange Commission.
22
29
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Senior Credit Agreements" means the Company's $117.5 million
senior bank credit facility dated February 18, 1998, as amended to date and any
other senior bank credit agreement or bank credit facility entered into by the
Company or any Restricted Subsidiary, as any of the same may be amended, waived
or modified from time to time (except to the extent that any such amendment,
waiver or modification would be prohibited by the terms of the Indenture).
"Senior Credit Facility" means the Company's $117.5 million
senior bank credit facility dated February 18, 1998, as amended from time to
time.
"Senior Indebtedness" of the Company means the Notes and any
other Indebtedness of the Company that is not subordinated by its terms in
right of payment to any Indebtedness or other obligation of the Company.
"Senior Subordinated Notes" means the Company's 9 3/4% Senior
Subordinated Notes due October 1, 2007, as amended, waived, modified or
replaced from time to time, provided such amendment, waiver, modification or
replacement does not shorten the maturity, increase the principal amount
outstanding, or change the subordination provisions in a manner that makes them
less subordinated.
"Senior Subordinated Notes Indenture" means the Indenture
between Norwest Bank Minnesota, National Association, as trustee, and the
Company relating to the Senior Subordinated Notes, as amended, waived, modified
or replaced from time to time, provided such amendment, waiver, modification or
replacement does not shorten the maturity, increase the principal amount
outstanding, or change the subordination provisions in a manner that makes them
less subordinated.
"Significant Subsidiary" means any Restricted Subsidiary which
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.03.
"Stated Maturity" means, with respect to any instrument, the
date specified in such instrument as the fixed date on which the final payment
of principal of such instrument is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase, redemption or repayment of such instrument at the option of the
holder thereof
23
30
upon the happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations guaranteed by the United States of America or any
agency thereof, (ii) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States, and which bank or trust company has
capital, surplus and undivided profits aggregating in excess of $50,000,000 (or
the foreign currency equivalent thereof) and has outstanding debt which is
rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act) or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor, (iii) repurchase obligations with a
term of not more than 30 days for underlying securities of the types described
in clause (i) above entered into with a bank meeting the qualifications
described in clause (ii) above, (iv) investments in commercial paper, maturing
more than 90 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the laws of
the United States of America, any state thereof or the District of Columbia or
any foreign country recognized by the United States of America, with a rating
at the time as of which any investment therein is made of "P-1" (or higher)
according to Xxxxx'x Investors Service, Inc. or "A-1" (or higher) according to
Standard and Poor's Ratings Group, and (v) investments in securities with
maturities of six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by Standard & Poor's Ratings Group or "A" by Xxxxx'x Investors
Service, Inc.
24
31
"Total Assets" means the total consolidated assets of the
Company and its Restricted Subsidiaries, as shown on the most recent balance
sheet (excluding the footnotes thereto) of the Company.
"Trading Day" means, with respect to any security, each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on the exchange or market on which such security is
traded.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and as in force at the date as of which this instrument was
executed, except as provided in Section 9.05; provided, however, that in the
event the Trust Indenture Act is amended after such date, the Trust Indenture
Act means, to the extent required by such amendment, the Trust Indenture Act as
so amended.
"Unrestricted Global Note" means a permanent Global Note in
the form of Exhibit B bearing the Global Note Legend and deposited with or on
behalf of and registered in the name of the Depository or its nominee.
"Unrestricted Certificated Notes" means Notes that are in the
form of the Notes attached hereto as Exhibit B, that do not include the Global
Note Legend.
"Unrestricted Notes" means the Unrestricted Global Notes and
Unrestricted Certificated Notes.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of
its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien
on any property of, the Company or any other Subsidiary of the Company that is
not a Subsidiary of the Subsidiary to be so designated; provided, however, that
either (A) the Subsidiary to be so designated has total assets of $1,000 or
less or (B) if such Subsidiary has assets greater than $1,000, such designation
would be permitted under Section 10.11 hereof. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after
25
32
giving effect to such designation (x) the Company could Incur $1.00 of
additional Indebtedness under paragraph (a) of Section 10.10 hereof and (y) no
Default shall have occurred and be continuing. Any such designation by the
Board of Directors shall be notified by the Company to the Trustee by promptly
filing with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Global Notes" means one or more registered global notes
without interest coupons.
"U.S. Government Obligation" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned
by the Company and/or one or more Wholly Owned Subsidiaries.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
26
33
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.04. 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
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and,
27
34
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where 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 the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) 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 by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, 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 Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note 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 Note.
(e) Except for matters arising under Article Five (in
which event any record date shall be set by the Trustee), the Company may set
any day as a record date for the purpose of determining the Holders of
Outstanding Notes entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Notes. If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Notes on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date (as defined below) by Holders of the
requisite principal amounts of Outstanding Notes on such record date. Nothing
in this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a
28
35
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Notes on the date such action is taken.
Promptly after receiving written notice of a record date set by the Company
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Notes in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose
of determining the Holders entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
5.02, (iii) any request to institute proceedings referred to in Section
5.07(b), or (iv) any direction referred to in Section 5.12. If any record date
is set pursuant to this Section 1.04(e), the Holders on such record date, and
only such Persons, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Notes on such record date. Nothing in this Section 1.04(e)
shall be construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant to this
Section 1.04(e) (whereupon the record date previously set shall automatically
and with no action by any Person be cancelled and of no effect), and nothing in
this Section 1.04(e) shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Notes on the date such action
is taken. Promptly after any record date is set pursuant to this Section
1.04(e), the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Notes in the manner
set forth in Section 1.06.
(f) With respect to any record date set pursuant to
Sections 1.04(e) or 1.04(f), the party hereto which sets such record date may
designate any day as the "Expiration Date" and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Notes in the manner set
forth in Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section or Section 1.04(e), the party hereto which set such record date
shall be deemed to have initially designated the 180th day after such record
date as the Expiration Date with respect thereto, subject to its right to
change the
29
36
Expiration Date as provided in this Section 1.04(f). Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Section 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with, (i) the
Trustee by any Holder or by the Company, shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Xxxxxx xx Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Department, or
(ii) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company at 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Conflict with Trust Indenture Act.
30
37
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 1.08. Book-Entry System.
If the Notes cease to trade in the Depository's book-entry
settlement system, the Company covenants and agrees that it shall use
reasonable efforts to make such other book-entry arrangements that it
determines are reasonable for the Notes.
Section 1.09. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not effect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Notes 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 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Notes, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the laws of the State of New York without regards
to the conflicts of law principles as applied in such state.
31
38
Section 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any security or the last date on which a Holder has the
right to convert his Notes shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Notes) payment of interest or
principal on the Notes need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the stated maturity, provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, or Stated Maturity, as the case may be.
Section 1.15. Immunity of Incorporators, Stockholders, Officers and
Directors.
No recourse shall be had for the payment of the principal of
or the interest, if any, on any Note, or for any claim based thereon, or upon
any obligation, covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
indirectly through the Company or of any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment of penalty or otherwise; it being expressly agreed and understood
that this Indenture and all of the Notes are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or is incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any successor corporation, either directly or indirectly through
the Company or any successor corporation, because of the incurring of the
Indebtedness hereby authorized or under or by reason of any of the obligations,
covenants or agreements contained in this Indenture or in the Notes, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Notes.
ARTICLE 2
NOTE FORMS
Section 2.01. Generally.
The Private Placement Notes and the Trustee's certificate of
authentication shall be in substantially the form of Exhibit A, and the
Exchange Notes shall be in substantially the form of Exhibit B hereto, which
exhibits are part of this Indenture with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such notations, letters, numbers or other marks of
identification and such notations, legends or endorsements placed
32
39
thereon as may be required to comply with law, the rules of any securities
exchange, the Code and the regulations thereunder, or as may, consistently
herewith, be determined by the officers executing such Notes, as evidenced by
their execution of the Notes. The Notes shall bear legends as appropriate in
accordance with Sections 2.02 and 2.07 hereof.
Section 2.02. Form and Dating.
The Notes offered and sold to QIBs in reliance on Rule 144A
will be issued initially in the form of one or more registered U.S. Global
Notes without interest coupons. Upon issuance, the U.S. Global Notes will be
delivered to the Trustee, as custodian for the Depository, in New York, New
York, and registered in the name of the Depository or its nominee, in each case
for credit to the accounts of the Depository's Direct and Indirect
Participants. The Notes offered and sold in offshore transactions in reliance
on Regulation S, if any, will be issued initially in the form of one or more
Regulation S Temporary Global Notes without interest coupons. The Regulation S
Temporary Global Notes will be deposited with the Trustee, as custodian for the
Depository, in New York, New York, and registered in the name of a nominee of
the Depository for credit to the accounts of Indirect Participants at the
Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("CEDEL").
During the 40-day period commencing on the day after the later of the offering
date and the original Issue Date of the Notes (the "40-Day Restricted Period"),
beneficial interests in the Regulation S Temporary Global Notes may be held
only through Euroclear or CEDEL and, pursuant to the Depository procedures,
Indirect Participants that hold a beneficial interest in the Regulation S
Temporary Global Note will not be able to transfer such interest to a person
that takes delivery thereof in the form of an interest in the U.S. Global
Notes. Within a reasonable time after the expiration of the 40-Day Restricted
Period, the Regulation S Temporary Global Notes will be exchanged for one or
more Regulation S Permanent Global Notes (collectively with the Regulation S
Temporary Global Notes, the "Regulation S Global Notes"). The 40-day
Restricted Period shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depository, together with copies of certificates
from Euroclear and Cedel Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note, and (ii) an Officers'
Certificate from the Company to such effect. After the 40-Day restricted
Period, (i) beneficial interests in the Regulation S Permanent Global Notes may
be transferred to a person that takes delivery in the form of an interest in
the U.S. Global Notes and (ii) beneficial interests in the U.S. Global Notes
may be transferred to a person that takes delivery in the form of an interest
in the Regulation S Permanent Global Notes, pursuant to Section 2.07(b) hereof,
provided, in each case, that the certification requirements described below are
33
40
complied with. All registered global notes are referred to herein collectively
as "Global Notes."
Notes issued in global form shall be substantially in the form
of Exhibit A and B attached hereto (including the Global Note Legend). Notes
issued in certificated form shall be substantially in the form of Exhibit A or
B attached hereto (but without the Global Note Legend). Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of Outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or in the Depository, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.07 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall
be applicable to transfers of beneficial interests in the Regulation S
Temporary Global Note and the Regulation S Permanent Global Notes that are held
by the Agent Members through Euroclear or Cedel Bank.
Section 2.03. Execution and Authentication.
An Officer of the Company shall sign the Notes by manual or
facsimile signature. If an Officer whose signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note, the Note
shall be valid nevertheless. A Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on
the Note. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture. The Trustee shall authenticate and make
available for delivery (i) Private Placement Notes for original issue in an
aggregate principal amount of $140,000,000 and (ii) Exchange Notes from time to
time for issue only in exchange for a like principal amount of Private
Placement Notes, in each case, upon a written order of the Company signed by an
Officer of the Company. Such order shall specify the amount of the Notes to be
authenticated and the date on which the Notes are to be authenticated. The
aggregate principal amount of Notes outstanding at any time may not exceed
$140,000,000 except as provided in Section 2.08. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate the Notes, upon
the consent of the Company to such appointment. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
34
41
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Note Registrar, Paying Agent or agent for service of notices
and demands.
Section 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange (the "Note
Registrar") and an office or agency where Notes may be presented for payment
(the "Paying Agent"). The Note Registrar, acting on behalf of and as agent for
the Company, shall keep a register (the "Notes Register") of the Notes and of
their transfer and exchange. The Company may appoint one or more co-registrars
and one or more additional Paying Agents, the term "Note Registrar" includes
any co-registrar and the term "Paying Agent" includes any additional paying
agent. The Company may change any Note Registrar or Paying Agent without
notice to any Holder.
The Company shall enter into an appropriate agency agreement
with any Note Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the terms of the Trust Indenture Act. 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
agent not a party to this Indenture. If the Company fails to maintain a Note
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 6.07. The Company or
any of its Subsidiaries may act as Paying Agent, Note Registrar, co-Registrar
or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Notes, until such time as the Trustee has
resigned or a successor has been appointed. Any of the Note Registrar, the
Paying Agent, the Depository or any other agent may resign upon 30 days' notice
to the Company.
Section 2.05. Paying Agent To Hold Money in Trust.
On or prior to each due date of the principal and interest on
any Note, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest 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 Noteholders or the Trustee
all money held by the Paying Agent for the payment of the principal of or
interest on the Notes and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section 2.05, the
Paying
35
42
Agent shall have no further liability for the money delivered to the Trustee.
Section 2.06. Noteholder 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 Noteholders and shall otherwise comply with Section 312(a) of the
Trust Indenture Act. If the Trustee is not the Note Registrar, the Company
shall furnish to the Trustee, in writing at least five Business Days before
each interest payment date 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 Noteholders; provided that as
long as the Trustee is the Note Registrar, no such list need be furnished.
Section 2.07. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or to another
nominee of the Depository, or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository. All Global
Notes will be exchanged by the Company for Certificated Notes in registered
certificated form if (i) the Company delivers to the Trustee notice from the
Depository that it is unwilling or unable to continue to act as Depository or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depository is not appointed by the Company within 90
days after the date of such notice from the Depository, (ii) the Company in its
sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Certificated Notes and delivers a written notice to such
effect to the Trustee or (iii) there shall have occurred and be continuing an
Event of Default or any event which after notice or lapse of time or both would
be an Event of Default with respect to the Notes; provided that in no event
shall the Regulation S Temporary Global Note be exchanged by the Company for
Certificated Notes prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Note Registrar of any certificates identified by the Company
or its counsel to be required pursuant to Rule 903 under the Securities Act.
Upon the occurrence of any of the preceding events in (i), (ii) or (iii) above
the Company will notify the Trustee in writing that, upon surrender by the
Direct and Indirect Participants of their interest in such Global Notes,
Certificated Notes will be issued in such names as the Direct and Indirect
Participants and the Depository shall instruct the Trustee. Global Notes also
may be exchanged or replaced in whole or in part, as provided in Sections 2.08
and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in
lieu of, a Global Note or any portion thereof, pursuant to Section 2.08 or 2.10
36
43
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.07(a); however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.07(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depository, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer described in the Private Placement Legend to the extent required by
the Securities Act. Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs as
applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the 40-day
Restricted Period transfers of beneficial interests in the Temporary
Regulation S Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be
transferred only to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.07(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests (other than a transfer of a
beneficial interest in a Global Note to a Person who takes delivery
thereof in the form of a beneficial interest in the same Global Note),
the transferor of such beneficial interest must deliver to the Note
Registrar either (A) (1) a written order from an Agent Member to the
Depository in accordance with the Applicable Procedures directing the
Depository to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to
be transferred or exchanged and (2) instructions given in accordance
with the Applicable Procedures containing information regarding the
Agent Member account to be credited with such increase or (B) (1) a
written order from an Agent Member given to the Depository in
accordance with the Applicable Procedures directing the
37
44
Depository to cause to be issued a Certificated Note in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depository to the Note Registrar
containing information regarding the Person in whose name such
Certificated Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Certificated Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note prior
to (x) the expiration of the 40-day Restricted Period and (y) the
receipt by the Note Registrar of any certificates identified by the
Company or its counsel to be required pursuant to Rule 903 under the
Securities Act. Upon an Exchange Offer by the Company in accordance
with Section 2.07(f) hereof, the requirements of this Section
2.07(b)(ii) shall be deemed to have been satisfied upon receipt by the
Note Registrar of the instructions contained in the Letter of
Transmittal delivered by the Holder of such beneficial interests in
the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture, the Notes and otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.07(g) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof
in the form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of clause (ii) above
and the Note Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Temporary
Global Note or the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit C
hereto, including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form
38
45
of a beneficial interest in an Unrestricted Global Note if the
exchange or transfer complies with the requirements of clause (ii)
above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the Notes issued in the Exchange Offer or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement (as defined in the Registration
Rights Agreement) in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by an
Exchanging Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Note Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit D
hereto, including the certifications in item (1)(a)
thereof;
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (4)
thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Note Registrar to the
effect that such exchange or transfer is in
compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are not required in order to
maintain compliance with the Securities Act.
39
46
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet
been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.03 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests in
Global Notes for Certificated Notes.
(i) If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Certificated Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Certificated Note then, upon receipt by the Note Registrar
of the following documentation:
(A) if the holder of such beneficial interest
proposes to exchange such beneficial interest for a Restricted
Certificated Note, a certificate from such holder in the form
of Exhibit D hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit C hereto, including the certifications in
item (3)(a) thereof;
40
47
(E) if such beneficial interest is being
transferred to an Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit C
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (3)(b) thereof;
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit C hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Note to be reduced accordingly pursuant
to Section 2.07(g) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Restricted Certificated Note in the appropriate
principal amount. Any Restricted Certificated Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.07(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Note Registrar through
instructions from the Depository and the Agent Member. The Trustee
shall deliver such Restricted Certificated Notes to the Persons in
whose names such Notes are so registered. Any Restricted Certificated
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.07(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Notwithstanding Sections 2.07(c)(i)(A) and (C)
hereof, a beneficial interest in the Regulation S Temporary Global
Note may not be (A) exchanged for a Certificated Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Note
Registrar of any certificates required pursuant to Rule 903(c)(B)
under the Securities Act or (B) transferred to a Person who takes
delivery thereof in the form of a Certificated Note prior to the
satisfaction of the conditions set forth in clause (A) above or unless
the transfer is pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
41
48
(iii) Notwithstanding Section 2.07(c)(i) hereof, a holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Certificated Note or may
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Certificated Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
Broker-Dealer, (2) a Person participating in the distribution
of the Notes issued in the Exchange Offer or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by an
Exchanging Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Note Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Certificated Note, a certificate from such holder in
the form of Exhibit D hereto, including the
certifications in item (1)(b) thereof;
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Certificated Note, a certificate from
such holder in the form of Exhibit C hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in
42
49
order to maintain compliance with the Securities Act.
(iv) If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest
for an Unrestricted Certificated Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Certificated Note, then, upon satisfaction of the
conditions set forth in Section 2.07(b)(ii) hereof, the Trustee shall
cause the aggregate principal amount of the applicable Unrestricted
Global Note to be reduced accordingly pursuant to Section 2.07(g)
hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
an Unrestricted Certificated Note in the appropriate principal amount.
Any Unrestricted Certificated Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall be registered in
such name or names and in such authorized denominations as the holder
of such beneficial interest shall instruct the Note Registrar through
instructions from the Depository and the Agent Member. The Trustee
shall deliver such Unrestricted Certificated Notes to the Persons in
whose names such Notes are so registered. Any Unrestricted
Certificated Note issued in exchange for a beneficial interest
pursuant to this Section 2.07(c)(iv) shall not bear the Private
Placement Legend. A beneficial interest in an Unrestricted Global
Note cannot be exchanged for a Restricted Certificated Note or
transferred to a Person who takes delivery thereof in the form of a
Restricted Certificated Note.
(d) Transfer and Exchange of Certificated Notes for
Beneficial Interests in Global Note.
(i) If any Holder of a Restricted Certificated Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Certificated
Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by
the Note Registrar of the following documentation:
(A) if the Holder of such Restricted Certificated
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate from such Holder in
the form of Exhibit D hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Certificated Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect
43
50
set forth in Exhibit C hereto, including the certifications in
item (1) thereof; or
(C) if such Restricted Certificated Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Certificated Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note and, in the case of
clause (C) above, the Regulation S Global Note.
(ii) A Holder of a Restricted Certificated Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Certificated Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer, is
not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Notes issued in the Exchange Offer or (3)
a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by an
Exchanging Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Note Registrar receives the following:
(1) if the Holder of such Restricted
Certificated Notes proposes to exchange such Notes
for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit D hereto, including the certifications in
item (1)(c) thereof;
44
51
(2) if the Holder of such Restricted
Certificated Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in
item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and that such Restricted
Certificated Notes are being exchanged or transferred
in compliance with any applicable blue sky or
securities laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.07(d)(ii), the Trustee shall cancel the Restricted
Certificated Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) A Holder of an Unrestricted Certificated Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Unrestricted Certificated Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Certificated Note and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected pursuant to subparagraph (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.O3 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of beneficial
interests transferred pursuant to subparagraph (ii)(B), (ii)(D) or
(iii) above.
(e) Transfer and Exchange of Certificated Notes for
Certificated Notes. Upon request by a Holder of Certificated Notes and such
Holder's compliance with the provisions of this Section
45
52
2.07(e), the Note Registrar shall register the transfer or exchange, the
requesting Holder shall present or surrender to the Note Registrar the
Certificated Notes duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Note Registrar duly executed by such
Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, pursuant to the provisions of this Section 2.07(e).
(i) Restricted Certificated Notes may be transferred to
and registered in the name of Persons who take delivery thereof if the
Note Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit C hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit C hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Any Restricted Certificated Note may be exchanged by
the Holder thereof for an Unrestricted Certificated Note or
transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Certificated Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer, is
not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Notes issued in the Exchange Offer or (3)
a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by an
Exchanging Dealer pursuant to the Exchange Offer
46
53
registration statement in accordance with the Registration
Rights Agreement; or
(D) the Note Registrar receives the following:
(1) if the Holder of such Restricted
Certificated Notes proposes to exchange such Notes
for an Unrestricted Certificated Note, a certificate
from such Holder in the form of Exhibit D hereto,
including the certifications in item (1)(d) thereof;
(2) if the Holder of such Restricted
Certificated Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the form
of an Unrestricted Certificated Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and that such Restricted
Certificated Note is being exchanged or transferred
in compliance with any applicable blue sky or
securities laws of any State of the United States.
(iii) A Holder of Unrestricted Certificated Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Certificated Note. Upon receipt of a request for
such a transfer, the Note Registrar shall register the Unrestricted
Certificated Notes pursuant to the instructions from the Holder
thereof. Unrestricted Certificated Notes cannot be exchanged for or
transferred to Persons who take delivery thereof in the form of a
Restricted Certificated Note.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an authentication order in accordance with Section 2.03,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons
that are not (x) Broker-Dealers, (y) Persons participating in the distribution
of the Notes issued in the Exchange Offer or (z)
47
54
Persons who are Affiliates (as defined in Rule 144) of the Company and accepted
for exchange in the Exchange Offer and (ii) Unrestricted Certificated Notes in
an aggregate principal amount equal to the principal amount of the Restricted
Certificated Notes accepted for exchange in the Exchange Offer. Concurrent
with the issuance of such Notes, the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Notes to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Certificated Notes so
accepted Unrestricted Certificated Notes in the appropriate principal amount.
(g) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Certificated Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Certificated Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or by the Depository at the direction of
the Trustee, to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note, by the Trustee or by the Depository at the direction of the Trustee, to
reflect such increase.
(h) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Certificated Notes upon receipt
of a Company Order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Certificated
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 9.06, 10.13, 10.15 and
11.01 hereof).
48
55
(iii) The Note Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed
in part.
(iv) All Global Notes and Certificated Notes issued upon
any registration of transfer or exchange of Global Notes or
Certificated Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Certificated Notes surrendered upon
such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 11.03 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part, or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section 2.03
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Note Registrar pursuant to
this Section 2.07 to effect a transfer or exchange may be submitted by
facsimile.
Section 2.08. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or Note
Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee, upon
written order of the Company signed by an officer of the Company, shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee and the Company. Such Holder shall furnish an
indemnity
49
56
bond sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Note Registrar and any co-registrar
from any loss which any of them may suffer if a Note is replaced. The Company
and the Trustee may charge the Holder for their expenses in replacing a Note.
Every replacement Note issued pursuant to the terms of this
Section shall constitute an additional obligation of the Company under this
Indenture.
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 Notes.
Section 2.09. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. Except as
otherwise provided herein, a Note does not cease to be Outstanding because the
Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be Outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or Stated Maturity or,
pursuant to Section 4.02, within 91 days prior thereto, money sufficient to pay
all principal and interest payable on that redemption or Stated Maturity date
with respect to the Notes (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after such date such Notes (or portions thereof)
cease to be outstanding and on and after such redemption or Stated Maturity
interest on them ceases to accrue.
Section 2.10. Temporary Notes.
Until Certificated Notes are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of Certificated Notes but may have
variations that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Certificated Notes and deliver them in exchange for temporary
Notes. Holders of temporary Notes shall be entitled to all the benefits of
this Indenture.
50
57
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Note Registrar and the Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment or cancellation and deliver such
canceled Notes to the Company. The Trustee shall from time to time provide the
Company a list of all Notes that have been canceled as requested by the
Company. The Company may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
the Company shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) in any lawful manner in accordance with Section
3.03. The Company may pay the defaulted interest to the persons who are
Noteholders on a subsequent Special Record Date. The Company shall fix or
cause to be fixed any such Special Record Date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Noteholder a notice that states the Special Record Date, the payment date and
the amount of defaulted interest to be paid.
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to 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 Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
Section 2.14. Restrictive Legends.
The legends set forth in this Section 2.14 shall appear on the
face of all Global Notes and Certificated Notes issued under this indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(a) Private Placement Legend.
(A) Except as permitted by subparagraph (b)
below, each Global Note and each Certificated Note (and
51
58
all Notes issued in exchange therefor or in substitution
thereof) shall bear the legend in substantially the following
form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE
HEREOF, BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT)
(AN "IAI") OR (C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO
AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
(B) Notwithstanding the foregoing, any
Unrestricted Global Note or Certificated Note issued pursuant
to subparagraph (b)(iv), (c)(iii), (c)(iv), d(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) of Section
52
59
2.07 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(b) Global Note Legend. Each Global Note shall also bear
the following legend on the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.07 OF THE INDENTURE.
(c) Regulation S Temporary Global Note Legend.
The Regulation S Temporary Global Note shall also bear the
following legend on the face thereof:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH
PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS
NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM
ACCRUING ON THIS NOTE."
53
60
ARTICLE 3
THE NOTES
Section 3.01. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $140,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 2.07, 2.08,
2.10, 9.06, or 11.08.
The Notes shall be known and designated as the "9.25% Senior
Notes due May 15, 2006" of the Company. Their final Stated Maturity shall be
May 15, 2006, and they shall bear interest at the rate of 9.25% per annum, from
the date of initial issuance or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually on May
15 and November 15, commencing November 15, 1998 until the principal thereof is
paid or made available for payment.
The principal of and interest on the Notes shall be payable at
the office of the Trustee's agent in New York, New York. In addition, payment
of interest may, at the option of the Company be made by check mailed to the
address of the person entitled thereto as such address shall appear in the Note
Register.
The Notes shall be redeemable as provided in Article Eleven.
The Notes shall be subject to repurchase at the option of the
Holder as provided in Sections 10.13 and 10.15.
Section 3.02. Denominations.
The Notes shall be issuable only in fully registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
Section 3.03. Payment of Interest; Interest Rights Preserved.
Interest on any Note which 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 Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid
54
61
by the Company, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment,
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 prior to the date of the
proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 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 payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder at his address as it appears in the Note Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest in any other lawful manner, 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.
Subject to the foregoing provisions of this Section 3.03, each
Note delivered under this Indenture upon registration of, transfer of, or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
55
62
Section 3.04. Persons Deemed Owners.
Prior to due presentment of a Note 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 Note is registered as the owner of such
Note for the purpose of receiving payment of principal of and (subject to
Section 3.03) interest on such Note and for all other purposes whatsoever,
whether or not such Note 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 3.05. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 4.01. Satisfaction and Discharge of Indenture.
(a) This Indenture shall cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Notes herein expressly provided for), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) either
(A) all Notes theretofore authenticated and
delivered (other than (1) Notes which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 2.08 and (2) Notes for whose payment money
has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to
the Trustee for cancellation (1) have become due and payable,
(2) will become due and payable at their Stated Maturity
within one year, or (3) are to be called for redemption within
one year pursuant to Article 11 hereof and under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company, and, the Company, in the case of (1), (2) or (3)
above, has deposited or caused to be deposited with the
Trustee as
56
63
trust in trust for the purpose an amount of United States
dollars or U.S. Government Obligations sufficient to pay and
discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation of
principal and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be; and
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(i)(B) of clause (a) of this Section, the obligations of the Trustee under
Section 4.05 and the last paragraph of Section 10.03 shall survive. Except as
specifically agreed in writing, the Trustee shall not be responsible for the
payment of interest upon money deposited with it under this Indenture.
Section 4.02. Option To Effect Legal Defeasance Or Covenant Defeasance.
The Company may, at its option and, at any time, elect to have
either Section 4.03 or 4.04 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Four.
Section 4.03. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 4.02 hereof of the
option applicable to this Section 4.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 4.05 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be outstanding
only for the purposes of Section 4.06 hereof and the other Sections of this
Indenture referred to in (i) and (ii) below, and to have satisfied all their
other obligations under such Notes and this Indenture (and the
57
64
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, and interest on, the Notes when such payments are due from the
trust referred to in Section 4.06 hereof, (ii) the Company's, obligations with
respect to such Notes under Article Two and Section 10.02 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and the
Company's obligations in connection therewith and (iv) this Article Four.
Subject to compliance with this Article Four, the Company may exercise their
option under this Section 4.03 notwithstanding the prior exercise of their
option under Section 4.04 with respect to the Notes.
Section 4.04. Covenant Defeasance.
Upon the Company's exercise under Section 4.02 hereof of the
option applicable to this Section 4.04, the Company shall, subject to the
satisfaction of the conditions set forth in Section 4.05 hereof, be released
from its obligations under the covenants contained in Sections 10.10, 10.11,
10.12, 10.13, 10.14, 10.15, 10.17 and 10.18 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not outstanding for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 5.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section
4.02 hereof of the option applicable to this Section 4.04, subject to the
satisfaction of the conditions set forth in Section 4.05 hereof, Sections
5.01(c) through 5.01(g) hereof shall not constitute Events of Default.
58
65
Section 4.05. Conditions to Defeasance.
The Company may exercise Legal Defeasance or Covenant
Defeasance only if:
(1) the Company irrevocably deposits with the Trustee, in
trust (the "defeasance trust") for the benefit of the Holders, cash in
U.S. dollars, U.S. Government Obligations or a combination thereof, in
such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay principal
and interest on the outstanding Notes on the Stated Maturity or the
applicable Redemption Date, as the case may be, of such principal or
installment of principal or interest on the Outstanding Notes;
(2) in the case of Legal Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel (which counsel may
be an employee of the Company or any Subsidiary of the Company)
reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the Issuance Date, there has
been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such opinion of counsel shall
confirm that, the Holders of the Outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an opinion of counsel (which counsel may
be an employee of the Company or any Subsidiary of the Company)
reasonably acceptable to the Trustee confirming that the Holders of
the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time during the period ending on the 91st
day after the date of deposit (or greater period of time in which any
such deposit of trust funds may remain subject to bankruptcy or
insolvency laws insofar as those apply to the deposit by the Company);
59
66
(5) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under,
any material agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an
opinion of counsel to the effect that, as of the date of such opinion,
(A) the trust funds will not be subject to any rights of holders of
Indebtedness other than the Notes and (B) assuming no intervening
bankruptcy of the Company between the date of deposit and the 91st day
following the deposit and assuming no Holder of Notes is an insider of
the Company, after the 91st day following the deposit, the trust funds
will not be subject to the effects of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally under any applicable United States or state law;
(7) the Company shall have delivered to the Trustee an
officers' certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the
other creditors of the Company with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or others;
and
(8) the Company shall have delivered to the Trustee an
officers' certificate and an opinion of counsel (which counsel may be
an employee of the Company), each stating that all conditions
precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Opinions of Counsel required to be delivered under this
Section 4.05 may have qualifications customary for opinions of the type
required and counsel delivering such Opinions of Counsel may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, including certificates certifying as to matters
of fact.
Section 4.06. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.03 or 4.04
shall be held in trust and applied by the Trustee, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
60
67
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.01. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon any Note when
it becomes due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of any Note when
due; or
(c) default in the performance, or breach, of any covenant of
the Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section 5.01 specifically
dealt with), and continuance of such default or breach for a period of 30 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Notes, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(d) a failure by the Company or any Significant Subsidiary to
make any payment in respect of any Indebtedness (other than Non-Recourse Debt)
in an amount in excess of $15 million and continuance of such failure for at
least ninety (90) days, or a default by the Company or any Significant
Subsidiary with respect to any Indebtedness, which default results in the
acceleration of the Indebtedness in an amount in excess of $15 million, without
such Indebtedness having been discharged or such acceleration having been
cured, waived, rescinded or annulled within 90 days of such acceleration; or
(e) a final judgment or judgments for payment of money
against the Company or any Significant Subsidiary which remains undischarged
for a period ending on the later of (i) 60 days after the entry of such
judgment, as extended by any effective stay of its execution; or (ii) the date
on which any payment is or becomes due and payable pursuant to such judgment in
accordance with its terms, other than final judgments with respect to
Non-recourse Debt of the Company or any of its Significant Subsidiaries,
provided that the aggregate of all such outstanding judgments exceed $15
million
61
68
(excluding any amounts covered by insurance as to which the insurer has not
denied liability); or
(f) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company or any of its
Significant Subsidiaries in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Company or any of its
Significant Subsidiaries a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any of its Significant Subsidiaries under
any applicable Federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or any of its Significant Subsidiaries or of any substantial part of their
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by the Company or any of its Significant
Subsidiaries of a voluntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the
Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or any of
its Significant Subsidiaries or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or any of its Significant
Subsidiaries in substantial furtherance of any such action.
62
69
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.01(f) or 5.01(g) with respect to the Company) occurs and
is continuing, then and in every such case either the Trustee or the Holders of
at least 25% in principal amount of the Outstanding Notes may declare the
principal of all the Notes to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal shall become immediately due and payable. If
an Event of Default specified in Section 5.01(f) or 5.01(g) occurs and is
continuing with respect to the Company, the principal and any accrued interest
thereon, of all the then Outstanding Notes shall ipso facto become due and
payable immediately without any declaration or other act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration has been
made, the Holders of a majority in principal amount of the Outstanding Notes,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if the Company has paid or deposited with the
Trustee a sum sufficient to pay
(a) all overdue interest on all Notes,
(b) the principal of any Notes which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate of 9.25% per annum,
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate of 9.25% per annum,
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and
(e) all Events of Default, other than the non-payment of the
accelerated principal and interest of Notes which have become due solely by
such declaration of acceleration, have been cured or waived (as provided in
Section 5.13).
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
63
70
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Note when such interest becomes due and payable and such default continues for
a period of 30 days; or
(b) default is made in the payment of the principal of
any Note when due, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Notes, the whole amount then due and payable
on such Notes for principal and interest, and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
and on any overdue interest, at a rate of 9.25% per annum, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
(i) institute a judicial proceeding for the collection of the sums so due and
unpaid, (ii) prosecute such proceeding to judgment or final decree and may
(iii) enforce the same against the Company or any other obligor upon the Notes
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 5.04. 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
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
64
71
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes and take such
other actions, including participating as a member, voting or otherwise, of any
official committee of creditors appointed in such matter and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including, without limitation, any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders of Notes 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 other
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 to
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 6.07.
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 Notes 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; provided,
however, that the Trustee may, on behalf of such Holders, vote for the election
of a trustee in bankruptcy or similar official and may serve on a creditor's
committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
Five shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the
65
72
Notes and the notation thereon of the payment if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal and interest, respectively.
THIRD: Any remaining amounts, if any, shall be repaid to the
Company, its successors or assigns, or to whomever may be lawfully
entitled to the same, or as a court of competent jurisdiction may
determine.
Section 5.07. Limitation on Suits.
No Holder of any Note shall have any right to institute any
action, suit or proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Notes shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such action,
suit or proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes; it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing itself of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders, or
to obtain or to seek to obtain priority or preference over any other Holders or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
66
73
Section 5.08. Unconditional Right of Holders To Receive Principal
and Interest.
Notwithstanding any other provision in this Indenture, but
subject to the provisions of Article Twelve, the Holder of any Note shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and (subject to Section 3.03) interest on such Note on the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the prior
written consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 2.08, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12. Control by Holders.
67
74
The Holders of a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that (i) such direction
shall not be in conflict with (x) any rule of law, (y) this Indenture, or (z)
the indemnification provided by the Holder or Holders to the Trustee pursuant
to Section 5.07, and (ii) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder and its consequences, except a default
(a) in the payment of the principal of or interest on any
Note, or
(b) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected; provided, however, that no such
waiver shall be effected until all amounts then due to the Trustee under
Section 6.07 have been paid.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of or interest on any Note on or after the
respective Stated Maturities expressed in such Note (or, in the case of
68
75
redemption, on or after the Redemption Date) or for the enforcement of the
right to require the Company to repurchase any Notes in accordance with the
provisions of Section 10.15.
Section 5.15. Waiver of Stay or Extension 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
wherever enacted, now or at any time hereafter in force, 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 6
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) 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 the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture, but need not verify the accuracy of the contents
thereof.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
69
76
its own negligent failure to act, or its own wilful misconduct, except that
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section 6.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
Section 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder,
the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Note Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of or interest on any Note, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
70
77
Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may 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) 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
Board Resolution;
(c) 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, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) 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;
(g) 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
71
78
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) the permissive right of the Trustee to take or
refrain from taking any actions enumerated in this Indenture shall not be
construed as a duty and the Trustee shall not be answerable in such actions
other than for its own negligence or bad faith; and
(i) the Trustee shall not be deemed to know of any fact
or event upon the occurrence of which it may be required to take action
hereunder (except with respect to monetary defaults) unless one of its
Responsible Officers shall have actual knowledge thereof.
Section 6.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof.
Section 6.05. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any
Note Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Note Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company in writing.
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
72
79
(b) except as otherwise expressly provided herein, 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 (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs, expenses and reasonable
attorneys' fees of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
Section 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest,
within the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in accordance with the provisions of the Trust
Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
Federal and State or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article and a successor shall be appointed pursuant to Section 6.10.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
73
80
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered
to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Note for at least six months, or
(ii) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the
Company or by any such Holder (as described in the preceding
subsection (d)(i)), or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee, or (2) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Note for
at least six months may, on behalf of himself and all others similarly
situated,
74
81
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid, to
all Holders as their names and addresses appear in the Note Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article Six.
Section 6.12. Merger, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
75
82
Section 6.13. Preferential Collection of Claims Against Company.
If the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company or any other obligor on the
Notes, the Trustee shall be subject to and comply with the provisions of the
Trust Indenture Act regarding the collection of claims against the Company or
such other obligor.
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon original issue and upon exchange, registration of transfer, or
partial redemption or pursuant to Section 2.07, and Notes so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Notes by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be subject to acceptance by the Company and shall at
all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or The District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
76
83
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be subject to acceptance by the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Note Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 6.07.
If an appointment is made pursuant to this Section 6.14, the
Notes may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes described in the within-mentioned
Indenture.
Norwest Bank Minnesota, National
Association As Trustee
By:
Authorized Officer
By:
As Authenticating Agent
By:
Authorized Officer
77
84
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
Excluding from any such list names and addresses received by
the Trustee in its capacity as Note Registrar.
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the Notes,
and the corresponding rights and privileges of the Trustee, shall be as
provided in the Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
(a) On or about each May 15, the Trustee shall transmit
to Holders such reports, if any, concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act in the
manner provided pursuant thereto.
78
85
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed (if applicable), with the Commission and with the
Company. The Company will notify the Trustee when the Notes are listed on any
stock exchange (if applicable).
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to the Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to the Trust Indenture Act.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or, transfer or lease all or substantially all of its properties and
assets to any Person unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person to which the properties and assets of the
Company are so transferred or leased (the "Successor Company") (i) shall be a
corporation, partnership or trust, organized and existing under the laws of the
United States, 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 satisfactory to the Trustee, the payment of the
principal of and interest on the Notes and the performance of the other
covenants of the Company under this Indenture;
(b) immediately after giving effect to such consolidation,
merger, transfer or lease of all or substantially all of its properties and
assets, no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and be
continuing;
(c) except in the case of a merger, the sole purpose of which
is to change the Company's jurisdiction of incorporation, immediately after
giving effect to such transaction, the Successor Company would be able to Incur
an additional $1.00 of Indebtedness pursuant to Section 10.10(a); and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
79
86
such consolidation, merger, transfer or lease and, if a supplemental indenture
is required in connection with such transaction, such supplemental indenture,
complies with this Article Eight, and that all conditions precedent herein
provided relating to such transaction have been complied with.
Section 8.02. Successor Substituted.
Upon any consolidation of, merger of, transfer or lease of all
or substantially all of the assets of the Company in accordance with Section
8.01 the Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such Successor Company had been named as the Company herein,
and the Company shall be released from its obligations under this Indenture and
the Notes.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Notes; or
(b) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to secure the Notes; or
(d) to make provision with respect to the repurchase
obligations of the Company pursuant to the requirements of Section 10.13 or
Section 10.15; or
(e) to add any additional Events of Default; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(g) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
80
87
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture, provided such action pursuant to this clause (g)
shall not adversely affect the interests of the Holders.
Section 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) (i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note, (ii) reduce the principal amount of,
or interest on, any Note, (iii) reduce the amount payable upon an optional
redemption, (iv) modify the provisions with respect to the repurchase right of
the Holders in a manner adverse to the Holders, (v) change the place or
currency of payment of principal of, or interest on, any Note, (vii) impair the
right to institute suit for the enforcement of any payment on or with respect
to any Note, or
(b) reduce the percentage in principal amount of the
Outstanding Notes the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture, or
(c) reduce the above stated percentage of Outstanding
Notes necessary to modify or amend the Indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
81
88
shall not be obligated to, enter into any such supplemental indenture which, in
the Trustee's sole discretion, affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.04. 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 Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06. Reference in Notes to Supplemental Indentures.
Notes 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 Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
Section 9.07. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 9.01 or
Section 9.02, the Company shall give notice to all Holders of Notes of such
fact, setting forth in general terms the substance of such supplemental
indenture, in the manner provided in Section 1.06. Any failure of the Company
to give such notice, or any defect therein, shall not in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE 10
COVENANTS
Section 10.01. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
82
89
Section 10.02. Maintenance of Office or Agency.
The Company hereby appoints the Corporate Trust Office of the
Trustee, as its agent in the city of Minneapolis, Minnesota where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange, may be delivered and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served.
The Company hereby also appoints the Corporate Trust Office of
the Trustee as Paying Agent for the payment of principal of, and interest on
the Notes and appoints the Corporate Trust Office of the Trustee as transfer
agent where Notes may be surrendered for registration of transfer or exchange.
Until all of the Notes have been delivered to the Trustee for
cancellation, or moneys sufficient to pay the principal of and interest on
Notes have been made available for payment and either paid or returned to the
Company pursuant to the provisions of Section 10.03, the Company will maintain
in the city of New York, New York an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange, where Notes may be surrendered for
redemption and where notices and demand to or upon the Company, in respect of
the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee, and will give notice to Holders of Notes in the
manner specified in Section 1.06 of the appointment or termination of any such
agents and of the location and any change in the location of any such office or
agency.
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, presentations and surrenders may be made and notice and
demands may be served on and Notes may be surrendered for redemption to the
Corporate Trust Office of the Trustee, and the Company hereby appoints the same
as its agent to receive such respective presentations, surrenders, notices and
demands.
Section 10.03. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act. Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of or interest on any Notes, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the
83
90
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company
(or any other obligor upon the Notes) in the making of any payment of
principal or interest; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on any Note and remaining unclaimed for two years after such principal
or interest has become due and payable shall, subject to applicable escheat and
abandoned property law, be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may, at
the expense of the Company, cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York and in the city in which the
Corporate Trust Office of the Trustee is located, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such
84
91
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 10.04. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company, an Officer's Certificate stating
whether or not to the knowledge of the signers thereof the Company is in
compliance with all conditions and covenants under the Indenture (without
regard to any period of grace or requirement of notice provided hereunder).
The Company will deliver to the Trustee, within 3 Business Days after becoming
aware of any default or Event of Default under this Indenture, an Officers'
Certificate specifying with particularity such default or Event of Default and
further stating what action the Company has taken, is taking or proposes to
take with respect thereto. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default. The Company shall also comply with Trust
Indenture Act Section 314(a)(4).
Any notice required to be given under this Section 10.04 shall
be delivered to the Trustee at its Corporate Trust Office.
Section 10.05. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 10.06. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 10.06 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
85
92
Section 10.07. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the real or personal property of the Company or
any Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which disputed amounts adequate
reserves in accordance with generally accepted accounting principles have been
made.
Section 10.08. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 10.02, 10.03, 10.05, 10.06,
10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.17 and 10.18 if before the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
Section 10.09. Book-Entry System.
If the Notes cease to trade in the Depository's book-entry
settlement system, the Company covenants and agrees that it shall use
reasonable efforts to make such other book-entry arrangements that it
determines are reasonable for the Notes.
Section 10.10. Limitation on Indebtedness.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, Incur, directly or indirectly, any Indebtedness unless,
immediately after giving effect to such Incurrence, the Consolidated Coverage
Ratio exceeds 2.0 to 1.
(b) Notwithstanding Section 10.10(a), the Company and its
Restricted Subsidiaries may Incur any or all of the following Indebtedness:
(i) Indebtedness Incurred pursuant to the Credit
Agreements; provided, however, that, after giving effect to any such
Incurrence, the aggregate principal amount of such
86
93
Indebtedness then outstanding does not exceed the greater of (x) $200
million and (y) 90% of the Mortgages Receivable of the Company and its
Restricted Subsidiaries;
(ii) Indebtedness represented by the Notes issued in the
Note Offering (and the Exchange Notes);
(iii) Indebtedness outstanding pursuant to the Senior
Subordinated Notes and the Convertible Notes, or, in the event that
all or any portion of the Convertible Notes have been converted into
the Capital Stock of the Company, other Indebtedness of the Company
which is subordinated to the Notes at least to the same extent that
the Convertible Notes are subordinated to the Notes, in a principal
amount not to exceed the principal amount of the Convertible Notes
that have been so converted;
(iv) Indebtedness of the Company owed to and held by any
Restricted Subsidiary, or Indebtedness of a Restricted Subsidiary owed
to and held by the Company or a Wholly Owned Subsidiary; provided,
however, that any subsequent issuance or transfer of any Capital Stock
which results in any such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or Wholly Owned Subsidiary)
shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof;
(v) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to paragraph (a) or pursuant to clause (ii) or (iii)
or this clause (v) of this Section 10.10(b);
(vi) Indebtedness in respect of performance bonds,
bankers' acceptances, letters of credit and surety or appeal bonds
entered into by the Company and the Restricted Subsidiaries in the
ordinary course of their business;
(vii) Hedging Obligations consisting of Interest Rate
Agreements and Currency Agreements entered into in the ordinary course
of business and not for the purpose of speculation;
(viii) Purchase Money Indebtedness and Capital Lease
Obligations Incurred to finance the acquisition, lease or improvement
either directly or indirectly, through the purchase of Capital Stock,
by the Company or a Restricted Subsidiary of any assets in the
ordinary course of business and which do not exceed $25 million in the
aggregate at any time outstanding;
87
94
(ix) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business,
provided that such Indebtedness is extinguished within five business
days of Incurrence;
(x) Indebtedness of the Company and its Restricted
Subsidiaries arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, in any case
Incurred in connection with the disposition of any assets of the
Company or any Restricted Subsidiary (other than Guarantees of
Indebtedness Incurred by any Person acquiring all or any portion of
such assets for the purpose of financing such acquisition), in a
principal amount not to exceed the gross proceeds actually received by
the Company or any Restricted Subsidiary in connection with such
disposition;
(xi) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of credit in respect
of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding
workers' compensation claims; provided, however, that upon the drawing
of such letters of credit or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or
incurrence;
(xii) Indebtedness or Disqualified Capital Stock of Persons
that are acquired by the Company or any of its Restricted Subsidiaries
or merged into the Company or a Restricted Subsidiary in accordance
with the terms of this Indenture; provided that such Indebtedness or
Disqualified Capital Stock is not incurred in contemplation of such
acquisition or merger; and provided further that after giving effect
to such acquisition, either (x) the Company would be permitted to
incur at least $1.00 of additional Indebtedness or (y) the
Consolidated Coverage Ratio is greater than immediately prior to such
acquisitions; and
(xiii) Finance Subsidiary Indebtedness; and
(xiv) Indebtedness in an aggregate principal amount which,
together with all other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the date of such Incurrence (other than
Indebtedness permitted by clauses (i) through (xiii) above or
paragraph (a)), does not exceed $25 million.
88
95
(c) For purposes of determining compliance with this Section
10.10, (i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described in Section 10.10(b), the
Company, in its sole discretion, will classify such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in one of
the above clauses and (ii) an item of Indebtedness may be divided and
classified in more than one of the types of Indebtedness described in Section
10.10(b). Notwithstanding anything contained in clause (b)(i) above, the
amount of Indebtedness permitted to be Incurred pursuant to clause (b)(i) above
will be reduced by the amount of any Indebtedness of the Company owed to and
held by any Restricted Subsidiary that is not a Wholly Owned Subsidiary if such
Indebtedness was Incurred pursuant to clause (b)(iv) above.
Section 10.11. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary, directly or indirectly, to make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment: (i) a
Default shall have occurred and be continuing (or would result therefrom); (ii)
the Company is not able to Incur an additional $1.00 of Indebtedness under
Section 10.10(a); or (iii) the aggregate amount of such Restricted Payment
together with all other Restricted Payments (the amount of any payments made in
property other than cash to be valued at the fair market value of such
property, as determined in good faith by the Board of Directors) declared or
made since August 1, 1997 would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from August 1, 1997 to the
end of the most recent fiscal quarter prior to the date of such
Restricted Payment for which financial statements of the Company are
available (or, in case such Consolidated Net Income accrued during
such period (treated as one accounting period) shall be a deficit,
minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the
Company from the issuance or sale of its Capital Stock (other than
Disqualified Stock) subsequent to August 1, 1997 (other than an
issuance or sale to a Subsidiary of the Company);
(C) the amount by which Indebtedness of the Company or
its Restricted Subsidiaries is reduced on the Company's balance sheet
upon the conversion or exchange (other than by a Subsidiary of the
Company unless such Subsidiary is a Finance Subsidiary) subsequent to
August 1, 1997, of any Indebtedness (issued subsequent to August 1,
1997) of the Company or its Restricted Subsidiaries convertible or
exchangeable for Capital Stock (other than Disqualified Capital Stock)
of the
89
96
Company (less the amount of any cash, or the fair market value of any
other property, distributed by the Company or any Restricted
Subsidiary upon such conversion or exchange);
(D) an amount equal to the sum of (i) the reduction in
Investments in Unrestricted Subsidiaries resulting from dividends,
repayments of loans or advances or other transfers of assets
subsequent to August 1, 1997, in each case to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries, and (ii) the
portion (proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary; provided, however, that the
foregoing sum shall not exceed, in the case of any Unrestricted
Subsidiary, the amount of Investments previously made (and treated as
a Restricted Payment) by the Company or any Restricted Subsidiary in
such Unrestricted Subsidiary; and
(E) $15 million.
(b) The provisions of Section 10.11(a) will not prohibit:
(i) any purchase or redemption of Capital Stock or
Subordinated Obligations of the Company or any Restricted Subsidiary
made in exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other than
Disqualified Capital Stock and other than Capital Stock issued or sold
to a Subsidiary of the Company); provided, however, that (x) such
purchase or redemption shall be excluded from the calculation of the
amount of Restricted Payments and (y) the Net Cash Proceeds from such
sale (to the extent used for such purchase or redemption) shall be
excluded from the calculation of amounts under Section
10.11(a)(iii)(B);
(ii) any purchase or redemption of Subordinated
Obligations of the Company made in exchange for, or out of the
proceeds of the substantially concurrent sale of, Indebtedness of the
Company which is permitted to be Incurred pursuant to Section
10.10(a), (b) or (c); provided, however, any Indebtedness incurred
pursuant to this clause 10.11(b)(ii) shall be subordinated to the
Notes, to at least the same extent as such Subordinated Obligations;
provided, further, that such purchase or redemption shall be excluded
from the calculation of the amount of Restricted Payments;
(iii) any purchase or redemption of Disqualified Capital
Stock of the Company made in exchange for, or out of the proceeds of
the substantially concurrent sale of, Disqualified Capital Stock of
the Company; provided, however, that (x) at
90
97
the time of such exchange, no Default or Event of Default shall have
occurred and be continuing or would result therefrom and (y) such
purchase or redemption will be excluded from the calculation of the
amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 10.11; provided, however; that such
dividend shall be included in the calculation of the amount of
Restricted Payments;
(v) repurchase of Capital Stock of the Company from
current or former directors, officers or employees, employee benefit
plans or 401(k) plans of the Company; provided that such repurchases
shall not exceed $1 million in any year plus any amounts available for
such repurchases under this Section 10.11(b)(v) since August 1, 1997
which have not been used for such purpose but in no event shall such
repurchases exceed $5 million in any year; provided, further, that (x)
at the time of such repurchase, no Default or Event of Default shall
have occurred and be continuing or would result therefrom and (y) such
repurchases shall be included in the calculation of the amount of the
Restricted Payments;
(vi) repurchases of Capital Stock deemed to occur upon
exercise of stock options if such Capital Stock represents a portion
of the exercise price of such options; or
(vii) the payment of any dividend by a Subsidiary of the
Company to the holders of its Capital Stock; provided, however, that
any such payment of any dividend made to holders of the Capital Stock
of any Subsidiary of the Company on a pro rata basis or on a basis
that results in the receipt by the Company or a Restricted Subsidiary
of dividends or distributions of greater value than it would receive
on a pro rata basis will be excluded from the calculation of the
amount of Restricted Payments or
(viii) the payment of any dividend or distribution by a
Finance Subsidiary to the holders of its Capital Stock.
Section 10.12. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any
Restricted Subsidiary (a) to pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the Company, (b) to make any loans or advances to the
Company or
91
98
(c) to transfer any of its property or assets to the Company, except, in each
case:
(i) any encumbrance or restriction pursuant to the Senior
Credit Agreements, or any other agreement in effect at or entered into
on the Issue Date, including, without limitation, the Senior
Subordinated Notes Indenture, the Senior Subordinated Notes, the
Notes, the Indenture and the Credit Agreements, if any;
(ii) any encumbrance or restriction with respect to a
Person acquired by the Company or any Restricted Subsidiary pursuant
to an agreement relating to any Indebtedness Incurred by such Person
which was entered into on or prior to the date on which such Person
was acquired by the Company or such Restricted Subsidiary (other than
as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Person was acquired by the
Company or such Restricted Subsidiary) and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an
agreement effecting Refinancing Indebtedness Incurred pursuant to an
agreement referred to in clauses (i)-(xi) of this Section 10.12 (or
effecting a Refinancing of such Refinancing Indebtedness pursuant to
this clause (iii)) or contained in any amendment, modification,
restatement, renewal or supplement to an agreement referred to in
clauses (i)-(xi) of this Section 10.12 or this clause (iii); provided,
however, that the encumbrances or restrictions with respect to such
Restricted Subsidiary contained in any such agreements or amendments
effecting Refinancing Indebtedness are no more restrictive in any
material respect than encumbrances and restrictions with respect to
such Restricted Subsidiary contained in such agreements or amendments;
(iv) any such encumbrance or restriction consisting of
customary provisions in leases governing leasehold interests or other
agreements entered into in the ordinary course of business;
(v) in the case of Section 10.12(c), restrictions
contained in security agreements or mortgages securing Indebtedness of
a Restricted Subsidiary to the extent such restrictions restrict the
transfer of the property subject to such security agreements or
mortgages;
(vi) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for the sale
or disposition of all or substantially all the
92
99
Capital Stock or assets of such Restricted Subsidiary pending the
closing of such sale or disposition;
(vii) any restriction imposed by applicable law, rule,
regulation or order;
(viii) any encumbrance or restriction pursuant to Purchase
Money Indebtedness for property acquired in the ordinary course of
business that imposes restrictions of the nature discussed in clause
10.12(c) on the property so acquired;
(ix) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(x) any encumbrance or restriction pursuant to other
Indebtedness of Receivables Subsidiaries permitted to be incurred
subsequent to the Issue Date pursuant to the provisions of Section
10.10; and
(xi) any encumbrance or restriction pursuant to customary
provisions in joint venture agreements and other similar agreements
entered into in the ordinary course of business; and
(xii) any encumbrance or restriction relating to a Finance
Subsidiary.
Section 10.13. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, consummate any Asset Disposition unless the Company
or such Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the value
of all non-cash consideration), as determined in good faith by the Board of
Directors, of the shares and assets subject to such Asset Disposition and at
least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents.
For the purposes of this Section 10.13, the following are
deemed to be cash or cash equivalents: (x) the assumption of Indebtedness of
the Company or any Restricted Subsidiary, (y) securities received by the
Company or any Restricted Subsidiary from the transferee that are converted by
the Company or such Restricted Subsidiary into cash within 180 days after
receipt thereof and (z) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate fair market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause
93
100
(z) that is at that time outstanding and taken together with all Permitted
Investments made pursuant to clause (ix)(1) of the definition of "Permitted
Investment" that are at that time outstanding, not to exceed 10% of the
Company's Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving effect to
subsequent changes in value), shall be deemed to be cash or cash equivalents
for the purposes of this provision.
With respect to any Asset Disposition occurring on or after
the Issue Date from which the Company or any Restricted Subsidiary receives Net
Available Cash, the Company or such Restricted Subsidiary shall (i) within 360
days after the date such Net Available Cash is received and to the extent the
Company or such Restricted Subsidiary elects (or is required by the terms of
any Senior Indebtedness) to (A) apply an amount equal to such Net Available
Cash to prepay, repay or purchase Indebtedness under the Senior Credit
Agreements or Indebtedness secured by a Permitted Lien, in each case owing to a
Person other than the Company or any Affiliate of the Company, or (B) invest an
equal amount, or the amount not so applied pursuant to clause (A), in
Additional Assets (including by means of an Investment in Additional Assets by
a Restricted Subsidiary with Net Available Cash received by the Company or
another Restricted Subsidiary) and (ii) apply such excess Net Available Cash
(to the extent not applied pursuant to clause (i)) as provided in the following
paragraphs of this Section 10.13; provided, however, that in connection with
any prepayment, repayment or purchase of Indebtedness pursuant to clause (A)
above, the Company or such Restricted Subsidiary shall retire such Indebtedness
and shall cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid or purchased.
The amount of Net Available Cash required to be applied pursuant to clause (ii)
above and not theretofore so applied shall constitute "Excess Proceeds."
Pending application of Net Available Cash pursuant to this provision, such Net
Available Cash shall be invested in Temporary Cash Investments.
If at any time the aggregate amount of Excess Proceeds not
theretofore subject to an Excess Proceeds Offer (as defined below) totals at
least $15 million the Company shall, not later than 30 days after the end of
the period during which the Company is required to apply such Excess Proceeds
pursuant to clause (i) of the immediately preceding paragraph of this Section
10.13(a) (or, if the Company so elects, at any time within such period), make
an offer (an "Excess Proceeds Offer") to purchase from the Holders on a pro
rata basis an aggregate principal amount of Notes equal to the Excess Proceeds
(rounded down to the nearest multiple of $1,000) on such date, at a purchase
price equal to 100% of the principal amount of such Notes, plus, in each case,
accrued interest (if any) to the date of purchase (the "Excess Proceeds
Payment"). Upon completion of an Excess Proceeds Offer the amount of Excess
Proceeds remaining
94
101
after application pursuant to such Excess Proceeds Offer, (including payment of
the purchase price for Notes duly tendered) may be used by the Company for any
corporate purpose (to the extent not otherwise prohibited by this Indenture).
(b) Unless the Company shall have theretofore called for
redemption all the outstanding Notes pursuant to Article Eleven hereof, on or
before the 30th day after its becomes obligated to make an Excess Proceeds
Offer, the Company or, at the written request of the Company, the Trustee,
shall be obligated to mail to each Holder (and the Trustee, if applicable) at
the address appearing on the Note Register, a written notice as prepared by the
Company stating that the Holder may elect to have his Notes purchased by the
Company either in whole or in part (subject to prorationing as hereinafter
described in the event the Excess Proceeds Offer is oversubscribed) in integral
multiples of $1,000 of principal amount, at the applicable purchase price on a
date that is 60 days after the date of such notice (the "Purchase Date"). The
Company shall also deliver a copy of such notice of Excess Proceeds Offer to
the Trustee.
(c) Each notice, which shall govern the terms of the
Excess Proceeds Offer, shall state:
(i) that an Excess Proceeds Offer is being made
and that such Holder has the right to require the Company to purchase
such Notes on the Purchase Date pursuant to this Section 10.13;
(ii) the date by which the purchase right must be
exercised;
(iii) the price at which such Notes will be
purchased pursuant to the Excess Proceeds Offer; (iv) a description of
the procedures that a Holder must follow in order to tender their
Notes pursuant to such Excess Proceeds Offer;
(v) the place or places where such Notes must be
tendered for payment pursuant to the Excess Proceeds Offer.
(vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than three
business day prior to the Purchase Date, a telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Notes the Holder delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing its election to have such Notes purchased.
(d) Not later than the date upon which written notice of
an Excess Proceeds Offer is delivered to the Trustee as provided
95
102
below, the Company shall deliver to the Trustee an Officers' Certificate as to
(i) the amount of the Excess Proceeds Offer (the "Excess Proceeds Offer
Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Excess Proceeds Offer is being made and
(iii) the compliance of such allocation with the provisions of Section
10.13(a). Upon the expiration of the period for which the Excess Proceeds
Offer remains open (the "Excess Proceeds Offer Period"), the Company shall
deliver to the Trustee for cancellation the Notes or portions thereof which
have been properly tendered to and are to be accepted by the Company. Not
later than 11:00 a.m. (New York City time) on the Purchase Date, the Company
shall irrevocably deposit with the Trustee or with a paying agent (or, if the
Company is acting as Paying Agent, segregate and hold in trust) an amount in
cash sufficient to pay the Excess Proceeds Offer Amount for all Notes properly
tendered to and accepted by the Company. The Trustee shall, on the Purchase
Date, mail or deliver payment to each tendering Holder in the amount of the
purchase price.
(e) Holders electing to have a Note purchased will be
required to surrender the Note, together with all necessary endorsements and
other appropriate materials duly completed, to the Company at the address
specified in the notice at least eight Business Days prior to the Purchase
Date. Holders will be entitled to withdraw their election in whole or in part
if the Trustee or the Company receives not later than three Business Days prior
to the Purchase Date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note (which shall be $1,000 or an
integral multiple thereof) which was delivered for purchase by the Holder, the
aggregate principal amount of such Note (if any) that remains subject to the
original notice of the Excess Proceeds Offer and that has been or will be
delivered for purchase by the Company and a statement that such Holder is
irrevocably withdrawing his election to have such Note purchased. If at the
expiration of the Excess Proceeds Offer Period the aggregate principal amount
of Notes surrendered by Holders exceeds the Excess Proceeds Offer Amount, the
Company shall select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased).
Holders whose Notes are purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered.
(f) A Note shall be deemed to have been accepted for
purchase at the time the Trustee, directly or through an agent, mails or
delivers payment therefor to the surrendering Holder.
(g) The Company shall comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations thereunder in the event that Excess Proceeds are
received by the Company in connection
96
103
with the repurchase of Notes pursuant to this Section 10.13 and the Company is
required to repurchase Notes pursuant to this Section 10.13. To the extent
that the provisions of any securities laws or regulations conflict with
provisions of this Section 10.13, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section by virtue thereof.
Section 10.14. Limitation on Affiliate Transactions.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, enter into or permit to exist any transaction or
series of related transactions (including the purchase, sale, lease or exchange
of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
the terms thereof (1) are materially no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an
Affiliate, (2) if such Affiliate Transaction (or series of related Affiliate
Transactions) involves aggregate payments in an amount in excess of $5.0
million in any one year, (i) comply with clause (1) of this Section 10.14 and
(ii) have been approved by a majority of the disinterested members of the Board
of Directors, and (3) if such Affiliate Transaction (or series of related
Affiliate Transactions) involve aggregate payments in an amount in excess of
$10.0 million in any one year, (i) comply with clause (2) of this Section 10.14
and (ii) have been determined by a nationally recognized investment banking,
accounting or qualified appraisal firm to be fair, from a financial standpoint,
to the Company and its Restricted Subsidiaries.
(b) Section 10.14(a) shall not prohibit (i) any
Restricted Payment permitted to be paid pursuant to Section 10.11, (ii) any
issuance of securities, or other payments, awards or grants in cash, securities
or otherwise, pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans in the ordinary course of business and
approved by the Board of Directors, (iii) the grant of stock options or similar
rights to employees, officers and directors of the Company or any Subsidiary in
the ordinary course of business and pursuant to plans approved by the Board of
Directors, (iv) loans or advances to employees, officers or directors in the
ordinary course of business of the Company or its Subsidiaries, (v) fees,
compensation or employee benefit arrangements paid to and indemnity provided
for the benefit of directors, officers or employees of the Company or any
Subsidiary in the ordinary course of business, (vi) any Affiliate Transaction
(including any purchase of Receivables and Related Assets) between the Company
and a Subsidiary or Joint Venture, or between Subsidiaries or Joint Ventures,
in the ordinary course of business (so long as the other stockholders of any
participating Subsidiaries or Joint Ventures which are not Wholly Owned
Restricted Subsidiaries
97
104
are not themselves Affiliates of the Company), (vii) any transactions effected
pursuant to agreements in effect on the Issue Date; provided that such
transactions are effected pursuant to the terms of such agreements as in effect
on the Issue Date and (viii) any Affiliate Transactions between the Company and
any Finance Subsidiary.
Section 10.15. Change of Control.
(a) In the event that a Change of Control shall occur,
then each Holder shall have the right, at the Holder's option, to require the
Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Notes, or any portion of the principal amount
thereof that is an integral multiple of $1,000, on the date (the "Repurchase
Date") that is 45 days after the date of the Company Notice (as defined in
Section 10.15(b)) at a price in cash equal to 101% of the principal amount of
the Notes to be repurchased (the "Repurchase Price"), together in each case
with accrued interest to the Repurchase Date. Such right to require the
repurchase of the Notes shall not continue after a discharge of the Company
from its obligations with respect to the Notes in accordance with Article Four,
unless a Change of Control shall have occurred prior to such discharge. The
failure of the Company to pay the Repurchase Price in cash on the Repurchase
Date shall constitute an Event of Default for purposes of Section 5.01(b)
hereof notwithstanding the Company's inability to comply with provisions of or
satisfy any conditions set forth in this Section 10.15. Whenever in this
Indenture (including Sections 3.01, 5.01(b) and 5.08) there is a reference, in
any context, to the principal of any Note as of any time, such reference shall
be deemed to include reference to the Repurchase Price payable in respect of
such Note to the extent that such Repurchase Price is, was or would be so
payable at such time, and express mention of the Repurchase Price in any
provision of this Indenture shall not be construed as excluding the Repurchase
Price in those provisions of this Indenture when such express mention is not
made.
(b) Unless the Company shall have theretofore called for
redemption all the outstanding Notes pursuant to Article Eleven hereof, on or
before the 30th day after the occurrence of a Change of Control, the Company
shall be obligated to mail, by first class mail, to each Holder (and the
Trustee, if applicable) at the address appearing on the Note Register, a
written notice (the "Company Notice") as prepared by the Company of the
occurrence of the Change of Control and of the repurchase right set forth
herein arising as a result thereof. The Company shall also deliver a copy of
such notice of a repurchase right to the Trustee.
(c) Each notice of a repurchase right shall state:
98
105
(i) that a Change of Control has occurred and
that such Holder has the right to require the Company to
purchase such Holder's Notes on the Repurchase Date,
(ii) the date by which the repurchase right must
be exercised,
(iii) the Repurchase Price,
(iv) the circumstances and relevant facts and
relevant financial information regarding such Change of
Control,
(v) a description of the procedure which a Holder
must follow to exercise a repurchase right, and
(vi) the place or places where such Notes may be
surrendered for repurchase.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Notes.
If any of the foregoing provisions are inconsistent with
applicable law, such law shall govern.
(d) To exercise a repurchase right, a Holder shall deliver to
the Trustee on or before the 30th day after the date of the Company Notice (i)
written notice of the Holder's exercise of such right, which notice shall set
forth the name of the Holder, the principal amount of the Notes to be
repurchased, and a statement that an election to exercise the repurchase right
is being made thereby, and (ii) the Notes with respect to which the repurchase
right is being exercised, duly endorsed for transfer to the Company. Such
written notice shall be executed by the Holder and shall be irrevocable.
(e) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be paid the
Repurchase Price in cash as provided above, to the Holder on the Repurchase
Date, together with accrued and unpaid interest to the Repurchase Date payable
with respect to the Notes as to which the repurchase right has been exercised;
provided, however, that installments of interest that mature on or prior to the
Repurchase Date shall be payable in cash to the Holders of such Notes, or one
or more predecessor Notes, registered as such at the close of business on the
relevant Regular Record Date according to the terms and provisions of Article
Three.
(f) If any Note surrendered for repurchase shall not be
so paid on the Repurchase Date, the principal shall, until paid,
99
106
bear interest to the extent permitted by applicable law from the Repurchase
Date at the rate of 9.25%.
(g) All Notes delivered for repurchase shall be delivered
to the Trustee the Paying Agent or any other agents (as shall be set forth in
the Company Notice) to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 2.11.
(h) Any Note which is to be repurchased only in part
shall be surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the portion of the principal of the Note so surrendered and
not so repurchased.
(i) The Company shall comply, to the extent applicable,
with the requirements of Rule 14e-1 of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Notes
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
Section 10.16. 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 purpose of this
Indenture.
Section 10.17. Limitation on Liens.
The Company shall not, directly or indirectly, Incur or permit
to exist any Lien of any nature whatsoever on any property of the Company or
any Restricted Subsidiary (including Capital Stock of a Restricted Subsidiary),
whether owned at the Issue Date or thereafter acquired, which secures
Indebtedness that ranks pari passu with or is subordinated to the Notes unless
(i) such Lien is a Permitted Lien;
(ii) if such Lien secures Indebtedness that ranks pari
passu with the Notes, the Notes are secured on an equal and ratable
100
107
basis with the obligation so secured until such time as such obligation is no
longer secured by a Lien; or
(iii) if such Lien secures Indebtedness that is
subordinated to the Notes, such Lien shall be subordinated to a Lien granted to
the Holders on the same collateral as that securing such Lien to the same
extent as such subordinated Indebtedness is subordinated to the Notes.
Section 10.18. Commission Reports.
Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the Commission and provide the Trustee, the
Noteholders and prospective Noteholders (upon request) with such annual reports
and such information, documents and other reports as are specified in Section
13 or 15(d) of the Exchange Act and applicable to a U.S. corporation subject to
such Sections, and such information, documents and other reports to be so
provided within 15 days after the times specified for filing of such
information, documents and reports under such Sections; provided, however, that
the Company shall not be required to file any report, document or other
information with the Commission if the Commission does not permit such filing.
ARTICLE 11
REDEMPTION OF NOTES
Section 11.01. Right of Redemption.
(a) Except as set forth in the following paragraph, the
Notes may not be redeemed at the option of the Company prior to May 15, 2002.
Thereafter, the Notes may be redeemed, in whole or in part, at the option of
the Company, upon not less than 30 nor more than 60 days' notice by mail.
(b) The Redemption Prices (expressed as a percentage of
principal amount), and in each case plus accrued and unpaid interest to the
date of redemption, and subject to the rights of Holders of record on the
relevant Regular Record Date to receive interest due on an Interest Payment
Date, are as follows for the 12-month period (unless otherwise noted) beginning
on May 15 of the following years:
101
108
REDEMPTION
YEAR PRICE
---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.625%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.083%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.542%
2005 and thereafter . . . . . . . . . . . . . . . . . . . 100.000%
(c) In addition, at any time and from time to time prior
to May 15, 2001, the Company may redeem in the aggregate up to 40% of the
original principal amount of the Notes with the proceeds of one or more Equity
Offerings, at a redemption price (expressed as a percentage of principal
amount) of 109.25% plus accrued and unpaid interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that at least 60% of the original aggregate principal amount of the Notes must
remain outstanding after each such redemption.
Section 11.02. Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article Eleven.
Section 11.03. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 11.01 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Notes, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed.
Section 11.04. Selection by Trustee of Notes To Be Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 30 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, by lot, pro rata, or by such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $1,000 or any integral multiple thereof) of
the principal amount of Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
102
109
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to
the portion of the principal amount of such Notes which has been or is to be
redeemed.
Section 11.05. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at such Holder's
address appearing in the Note Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Notes are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be redeemed and that interest
thereon will cease to accrue on and after said date,
(e) the place or places where such Notes are to be
surrendered for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
Section 11.06. Deposit of Redemption Price.
Not less than one Business Day prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money (which shall be in immediately
available funds on such Redemption Date) sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Notes which are to be redeemed on that date.
103
110
Section 11.07. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price specified in Section 11.01, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Notes shall cease to bear interest. Upon surrender of
any such Note for redemption in accordance with said notice, such Note shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Notes, or one or more Predecessor Notes, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.03.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof shall, until paid, bear
interest from the Redemption Date at the rate of 9.25% per annum.
Section 11.08. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 10.02 (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 his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
104
111
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the day and year first above written.
SIGNATURE RESORTS, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Its: Vice President, General
Counsel and Secretary
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ XXXX XXXXXXXXX
-------------------------------------
Its: Corporate Trust Officer
112
EXHIBIT A
[THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE THIRD SENTENCE HEREOF, BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI") OR (C) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR RULE 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE WITH A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM
OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE
A-1
113
TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.](1)
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO AN ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.07 OF THE INDENTURE.(2)
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNER OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH
----------
(1) Legend appears on all Private Placement Notes.
(2) Legend appears on all Global Notes.
A-2
114
SUCH HOLDER HOLDS THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT
INTEREST FROM ACCRUING ON THIS NOTE.](3)
----------
(3) Legend appears on all Regulation S Temporary Global Notes.
A-3
115
REGISTERED $___________
NO. _________________ CUSIP: ___________
Signature Resorts, Inc.
9.25% Senior Subordinated Note due May 15, 2006
Signature Resorts, Inc., a corporation duly organized and
existing under the laws of Maryland (herein called the "Company", which term
includes any successor person under the Indenture hereinafter referred to), for
value received hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of $________ on May 15, 2006, and to pay interest thereon from
the date of the initial issuance or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semiannually on May 15
and November 15 in each year, commencing November 15, 1998, at the rate of
9.25% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner,
all as more fully provided in said Indenture. Payment of the principal of and
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in The
A-4
116
City of New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place. Unless the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
A-5
117
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: SIGNATURE RESORTS, INC.
Attest:____________________________ By: ___________________________
Name: _____________________________ Name:__________________________
Title:_____________________________ Title:_________________________
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee,
certifies that this is one of the Notes referred to in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:_____________________________
Name:_______________________
Title:______________________
A-6
118
[Form of Reverse of Note]
This Note is one of a duly authorized issue of securities of
the Company designated as its 9.25% Senior Subordinated Notes due May 15, 2006
(herein called the "Notes"), limited in aggregate principal amount to
$140,000,000 issued and to be issued under an Indenture, dated as of April 15,
1998 (herein called the "Indenture"), between the Company and Norwest Bank
Minnesota, National Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. The Notes are issuable in registered form only without coupons in
denominations of $1,000 and any integral multiple thereof.
The holder of this Note is entitled to the benefits of a
Registration Rights Agreement, dated as of April 15, 1998, among the Company
and the Initial Purchasers named therein.
The Notes are subject to redemption upon not less than 30
days' nor more than 60 days' notice by mail, at any time on or after May 15,
2002, as a whole or in part, at the election of the Company. The Redemption
Prices (expressed as percentages of the principal amount), and in each case,
plus accrued and unpaid interest to the date of Redemption, and subject to the
rights of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date, are as follows for the 12-month
period (unless otherwise noted) beginning on May 15 of the following years:
Year Redemption Price
---- ----------------
2002 . . . . . . . . . . . . . . . . . . . . . 104.625%
2003 . . . . . . . . . . . . . . . . . . . . . 103.083%
2004 . . . . . . . . . . . . . . . . . . . . . 101.542%
2005 and thereafter . . . . . . . . . . . . . . 100.000%
In addition, at any time and from time to time prior to May
15, 2001, the Company at its option may redeem in the aggregate up to 40% of
the original principal amount of the Notes with the
A-7
119
proceeds of one or more Equity Offerings at a redemption price (expressed as a
percentage of principal amount) of 109.25% plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that at least 60% of the original aggregate principal
amount of the Notes must remain outstanding after each such redemption.
Interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Notes, or one or
more Predecessor Notes, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
Upon a Change of Control (as defined in the Indenture), the
Company will be required to offer to repurchase all of the Notes at 101% of
their principal amount plus accrued interest. In addition in the event of
certain Asset Dispositions, the Company will be required to make an offer to
purchase the Notes at a purchase price of 100% of their principal amount plus
accrued interest (if any) to the date of purchase (subject to the rights of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date) as provided in, and subject to the terms of the
Indenture.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
A-8
120
transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless (i) such Holder shall have
previously given the Trustee written notice of a continuing Event of Default,
(ii) the Holders of not less than 25% in principal amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity with respect thereto, and the Trustee shall not have
received from the Holders of a majority in principal amount of the Notes
Outstanding a direction inconsistent with such request, and (iii) the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Note for the enforcement of any
payment of principal hereof, if any, or interest hereon on or after the
respective due date expressed herein.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
X-0
000
Xx service charge shall be made to a Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York, without regards to the
conflicts of law principles as applied in such state.
No recourse shall be had for the payment of the principal or
the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the considerations for
the issue hereof, expressly waived and released.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-10
122
ASSIGNMENT FORM
For value received_________________ hereby sell(s), assign(s) and transfer(s)
unto _________________ (please insert name and social security or other
identifying number of assignee) the within Note, and hereby irrevocably
constitutes and appoints ________________________ as attorney to transfer the
said Note on the books of the Company, with full power of substitution in the
premises.
Dated:____________________ ________________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
___________________________ Signature Guaranteed
A-11
123
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 10.13 or 10.15 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 10.13 or 10.15 of the Indenture,
state the amount you elect to have purchased: $
Date: ______________ Your Signature: _______________________
(Sign exactly as your
name appears on the
other side of the
Security)
Signature Guarantee:__________________________________
(Signature must be guaranteed)
A-12
124
EXHIBIT B
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO AN ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.07 OF THE INDENTURE.](4)
----------
(4) Legend appears on all Global Notes.
B-1
125
REGISTERED $___________
NO. _________________ CUSIP: ___________
Signature Resorts, Inc.
9.25% Senior Note due May 15, 2006
Signature Resorts, Inc., a corporation duly organized and
existing under the laws of Maryland (herein called the "Company", which term
includes any successor person under the Indenture hereinafter referred to), for
value received hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of $___________ on May 15, 2006, and to pay interest thereon from
the date of the initial issuance or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semiannually on May 15
and November 15 in each year, commencing November 15, 1998, at the rate of
9.25% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be May 1 or November 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner,
all as more fully provided in said Indenture. Payment of the principal of and
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in The City of New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place. Unless the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
B-2
126
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: SIGNATURE RESORTS, INC.
Attest:____________________________ By: ___________________________
Name: _____________________________ Name:__________________________
Title:_____________________________ Title:_________________________
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee,
certifies that this is one of the Notes referred to in the within-mentioned
Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:_____________________________
Name:_______________________
Title:______________________
B-3
127
[Form of Reverse of Note]
This Note is one of a duly authorized issue of securities of
the Company designated as its 9.25% Senior Notes due May 15, 2006 (herein
called the "Notes"), limited in aggregate principal amount to $140,000,000
issued and to be issued under an Indenture, dated as of April 15, 1998 (herein
called the "Indenture"), between the Company and Norwest Bank Minnesota,
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. The Notes are
issuable in registered form only without coupons in denominations of $1,000 and
any integral multiple thereof.
The Notes are subject to redemption upon not less than 30 days'
nor more than 60 days' notice by mail, at any time on or after May 15, 2002, as
a whole or in part, at the election of the Company. The Redemption Prices
(expressed as percentages of the principal amount), and in each case, plus
accrued and unpaid interest to the date of Redemption, and subject to the
rights of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date, are as follows for the 12-month
period (unless otherwise noted) beginning on May 15 of the following years:
Year Redemption Price
---- ----------------
2002 . . . . . . . . . . . . . . . . . . . . . . . . 104.625%
2003 . . . . . . . . . . . . . . . . . . . . . . . . 103.083%
2004 . . . . . . . . . . . . . . . . . . . . . . . . 101.542%
2005 and thereafter . . . . . . . . . . . . . . . . . 100.000%
In addition, at any time and from time to time prior to
May 15, 2001, the Company at its option may redeem in the aggregate up to 40%
of the original principal amount of the Notes with the proceeds of one or more
Equity Offerings at a redemption price (expressed as a percentage of principal
amount) of 109.25% plus accrued and unpaid interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that at least 60% of the original aggregate principal amount of the Notes must
remain outstanding after each such redemption.
B-4
128
Interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Notes, or one or
more Predecessor Notes, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
Upon a Change of Control (as defined in the Indenture), the
Company will be required to offer to repurchase all of the Notes at 101% of
their principal amount plus accrued interest. In addition in the event of
certain Asset Dispositions, the Company will be required to make an offer to
purchase the Notes at a purchase price of 100% of their principal amount plus
accrued interest (if any) to the date of purchase (subject to the rights of
holders of record on the relevant record date to receive interest due on the
relevant interest payment date) as provided in, and subject to the terms of the
Indenture.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any
B-5
129
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless (i) such Holder shall
have previously given the Trustee written notice of a continuing Event of
Default, (ii) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity with respect thereto, and the Trustee shall not
have received from the Holders of a majority in principal amount of the Notes
Outstanding a direction inconsistent with such request, and (iii) the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Note for the enforcement of any
payment of principal hereof, if any, or interest hereon on or after the
respective due date expressed herein.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in The City of New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made to a Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York, without regards to
B-6
130
the conflicts of law principles as applied in such state. No recourse shall be
had for the payment of the principal or the interest on this Note, or for any
claim based hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the considerations for the issue hereof, expressly waived and
released.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-7
131
ASSIGNMENT FORM
For value received_________________ hereby sell(s), assign(s) and transfer(s)
unto _________________ (please insert name and social security or other
identifying number of assignee) the within Note, and hereby irrevocably
constitutes and appoints ________________________ as attorney to transfer the
said Note on the books of the Company, with full power of substitution in the
premises.
Dated:_________________________ _________________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with
member ship in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
________________________ Signature Guaranteed
B-8
132
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
$_______________
Re: 9.25% Senior Notes due 2006
Reference is hereby made to the Indenture, dated as of
April 15, 1998 (the "Indenture"), between Signature Resorts, Inc., as issuer
(the "Company"), and Norwest Bank Minnesota, National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________________, (the "Transferor") owns and proposes to
transfer the Note(s) or interest in such Note(s) specified in Annex A hereto,
in the principal amount of $______ in such Note(s) or interests (the
"Transfer"), to ____________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED CERTIFICATED NOTE
PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and
in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or
Restricted Certificated Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the
beneficial interest or
C-1
133
Restricted Certificated Note for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Restricted Certificated Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the 144A Global Note and/or the Restricted Certificated
Note and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE TEMPORARY REGULATION S GLOBAL NOTE, THE REGULATION S
GLOBAL NOTE OR A RESTRICTED CERTIFICATED NOTE PURSUANT TO REGULATION
S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being
made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv)
if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest
or Restricted Certificated Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the
Regulation S Global Note, the Temporary Regulation S Global Note
and/or the Certificated Note and in the Indenture and the Securities
Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
RESTRICTED CERTIFICATED NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
being effected in compliance with the transfer restrictions applicable
to Restricted Certificated Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of
any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the
Company or a Subsidiary thereof;
C-2
134
or
(c) [ ] such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) [ ] such Transfer is being effected to an
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or
Rule 904, and the Transferor hereby further certifies that the
Transfer complies with the transfer restrictions applicable to
Restricted Certificated Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate
executed by the Transferee in the form of Exhibit E to the Indenture
and (2) if such Transfer is in respect of a principal amount of Notes
at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the
Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Restricted
Certificated Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted
Certificated Notes and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED
CERTIFICATED NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144.
(i) The Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Unrestricted Certificated Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION
S. (i) The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and in compliance
with
C-3
135
the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Unrestricted Certificated Note will
no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on
Restricted Certificated Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act. Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Unrestricted Certificated Note
will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or
Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
[INSERT NAME OF TRANSFEROR]
By:_____________________________________
Name:
Title:
Dated: _______________, ______
C-4
136
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _____), or
(ii) [ ] Regulation S Global Note
(CUSIP/CINS ______); or
(b) a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _____), or
(ii) [ ] Regulation S Global Note
(CUSIP/CINS ______), or
(iii) [ ] Unrestricted Global Note
(CUSIP ______); or
(b) a Restricted Certificated Note; or
(c) an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
C-5
137
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
[ ], [ ]
Re: 9.25% Senior Notes due 2006 (CUSIP )
Reference is hereby made to the Indenture, dated as of April 15, 1998
(the "Indenture"), between Signature Resorts, Inc. as issuer (the "Company")
and Norwest Bank Minnesota, National Association, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________, the ("Owner") owns and proposes to exchange the Note(s)
or interest in such Note(s) specified herein, in the principal amount of
$__________ in such Note(s) or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. [ ] EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED CERTIFICATED NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the United States Securities Act of 1933, as amended (the "Securities
Act"), (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted Global
Note is being acquired in
D-1
138
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO UNRESTRICTED CERTIFICATED NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
an Unrestricted Certificated Note, the Owner hereby certifies (i) the
Certificated Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Certificated Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
CERTIFICATED NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Owner's Exchange of a Restricted Certificated Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Certificated Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
CERTIFICATED NOTE TO UNRESTRICTED CERTIFICATED NOTE. In connection with the
Owner's Exchange of a Restricted Certificated Note for an Unrestricted
Certificated Note, the Owner hereby certifies (i) the Unrestricted Certificated
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Certificated Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Certificated Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. [ ] EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES FOR RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
D-2
139
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO RESTRICTED CERTIFICATED NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a Restricted Certificated Note with an equal principal amount, the Owner hereby
certifies that the Restricted Certificated Note is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Certificated Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Certificated Note and in the Indenture and the Securities Act.
(b)[ ] CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Certificated Note for a beneficial interest
in the [CHECK ONE] [ ] 144A Global Note or [ ] Regulation S Global Note, with
an equal principal amount, the Owner hereby certifies (i) such Owner acquired
such Restricted Certificated Note in a transaction pursuant to Rule 144A or
Regulation S, (ii) the beneficial interest is being acquired for the Owner's
own account without transfer and (iii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the beneficial interest issued will be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the relevant Restricted Global Note and in the Indenture and the Securities
Act.
D-3
140
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
________________________________________
[Insert Name of Owner]
By:_____________________________________
Name:
Title:
Dated: _________, ______
D-4
