EXHIBIT 4.01
CERIDIAN CORPORATION
(as Issuer)
7.25% SENIOR NOTES DUE 2004
_____________
INDENTURE
DATED AS OF JUNE 10, 1999
_____________
THE BANK OF NEW YORK
(as Trustee)
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . . . . . . . . . . . .1
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.2 OTHER DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. . . . . . . 16
SECTION 1.4 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . 16
ARTICLE II
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.1 FORM AND DATING. . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2 EXECUTION AND AUTHENTICATION . . . . . . . . . . . . . . . . . 18
SECTION 2.3 REGISTRAR, PAYING AGENT AND DEPOSITARY . . . . . . . . . . . . 19
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . . . . 19
SECTION 2.5 HOLDER LISTS . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.6 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.7 REPLACEMENT NOTES. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.8 OUTSTANDING NOTES. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.9 TREASURY NOTES . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.10 TEMPORARY NOTES. . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.11 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.12 DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 2.13 CUSIP NUMBERS. . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE III
REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.1 NOTICES TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED. . . . . . . . . . . . . . . 38
SECTION 3.3 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . 39
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . . . 39
SECTION 3.6 NOTES REDEEMED IN PART . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.7 OPTIONAL REDEMPTION. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 3.8 NO MANDATORY REDEMPTION. . . . . . . . . . . . . . . . . . . . 40
ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.1 PAYMENT OF NOTES . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . . . 41
ii
SECTION 4.3 SEC REPORTS AND REPORTS TO HOLDERS . . . . . . . . . . . . . . 42
SECTION 4.4 COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.5 STAY, EXTENSION AND USURY LAWS . . . . . . . . . . . . . . . . 43
SECTION 4.6 LIMITATION ON LIENS SECURING INDEBTEDNESS. . . . . . . . . . . 44
SECTION 4.7 LIMITATION ON TRANSACTIONS WITH AFFILIATES . . . . . . . . . . 44
SECTION 4.8 REPURCHASE OF NOTES AT THE OPTION OF THE
HOLDER IF THE ABR MERGER HAS NOT BEEN CONSUMMATED. . . . . . . 45
SECTION 4.9 CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . . . . 47
SECTION 4.10 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS . . . . . . . . 48
ARTICLE V
SUCCESSORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.1 MERGER, CONSOLIDATION AND SALE OF ASSETS . . . . . . . . . . . 48
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . . . . 49
ARTICLE VI
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.2 ACCELERATION . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.3 OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.4 WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . . . . 52
SECTION 6.5 CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.6 LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.7 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. . . . . . . . . 54
SECTION 6.8 COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . . . . 54
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . . . . 54
SECTION 6.10 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 6.11 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.1 DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.2 RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . 58
SECTION 7.4 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.5 NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES . . . . . . . . . . 59
SECTION 7.7 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . . . 59
SECTION 7.8 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . . . . 60
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . . . . 62
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . . . . 62
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . . . . 62
iii
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . 62
SECTION 8.3 COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE . . . . . . . . . . 64
SECTION 8.5 DEPOSITED MONEY AND GOVERNMENT SECURITIES
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. . . . . . 65
SECTION 8.6 REPAYMENT TO COMPANY . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.7 REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.8 SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . 67
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER. . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES. . . . . . . . . . . . . . 68
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES . . . . . . . . . . . . . . . 69
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. . . . . . . . . . . . . . 70
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . . . . 70
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES . . . . . . . . . . . . . . . 71
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . . . . 71
SECTION 9.7 HOLDERS OF NOTES TO VOTE AS A SINGLE CLASS . . . . . . . . . . 72
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.1 TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . . . . . . . 72
SECTION 10.2 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.3 COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES. . . . . . . . . . . . . . . . . . . . 73
SECTION 10.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT . . . . . . 73
SECTION 10.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . . . . 73
SECTION 10.6 RULES BY TRUSTEE AND AGENTS . . . . . . . . . . . . . . . . . 74
SECTION 10.7 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS . . . . . . . . . . . . . . . . . . 74
SECTION 10.8 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . . . . . . . . 75
SECTION 10.10 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.11 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 10.12 COUNTERPART ORIGINALS. . . . . . . . . . . . . . . . . . . . . 75
Section 10.13 Table of Contents, Headings, Etc.. . . . . . . . . . . . . . . 75
iv
EXHIBIT A
FORM OF NOTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER . . . . . . . . . . . . . . . . . . . . . . .B-1
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE . . . . . . . . . . . . . . . . . . . . . . .C-1
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . .D-1
CROSS-REFERENCE TABLE*
TIA SECTION INDENTURE SECTION
----------- -----------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.8; 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.8; 7.10; 10.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6; 10.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.6
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3; 4.4; 10.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
v
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.5; 10.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.7
317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
______________________________
N.A. means not applicable
*This Cross-Reference table shall not, for any purpose, be deemed to be part of
the Indenture.
vi
INDENTURE, dated as of June 10, 1999, among Ceridian Corporation,
a Delaware corporation (the "Company"), and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the 7.25% Series A Senior Notes
due 2004 (the "Series A Notes") and the 7.25% Series B Senior Notes due 2004
(the "Series B Notes" and together with the Series A Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1 Definitions
"144A GLOBAL NOTE" means one or more Global Notes bearing the
Private Placement Legend, that will be issued in an aggregate amount of
denominations equal in total to the outstanding principal amount of the Notes
sold in reliance on Rule 144A.
"ABR" means ABR Information Services, Inc., a Florida corporation.
"ABR MERGER AGREEMENT" means that certain Agreement and Plan of
Merger, dated as of April 30, 1999, by and among ABR, the Company, and Spring
Acquisition Corp., a Florida corporation and a wholly-owned subsidiary of the
Company.
"ACCRUED BANKRUPTCY INTEREST" means, with respect to any
Indebtedness, all interest accruing thereon after the filing of a petition by or
against the Company or any of its Subsidiaries or any Parent under any
Bankruptcy Law, in accordance with and at the rate (including any rate
applicable upon any default or event of default, to the extent lawful) specified
in the documents evidencing or governing such Indebtedness, whether or not the
claim for such interest is allowed as a claim after such filing in any
proceeding under such Bankruptcy Law.
"ADJUSTED TREASURY RATE" means, with respect to any redemption
date, the date per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable
Treasury Issue, which is expressed as a percentage of its principal amount,
equal to the Comparable Treasury Price for such redemption date, calculated on
the third business day preceding the redemption date, plus in each case 25 basis
points.
1
"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" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange at the relevant time.
"ATTRIBUTABLE DEBT" in respect of a Sale/Leaseback Transaction
means, 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).
"BANKRUPTCY CODE" means the United States Bankruptcy Code,
codified at 11 U.S.C. Section 101-1330, as amended.
"BENEFICIAL OWNER" or "BENEFICIAL OWNER" for purposes of the
definition of Affiliate has the meaning attributed to it in Rules 13d-3 and
13d-5 under the Exchange Act (as in effect on the Issue Date), whether or not
applicable.
"BOARD OF DIRECTORS" means the Company's Board of Directors or any
committee thereof duly authorized to act on behalf of such Board.
"BROKER-DEALER" means any broker-dealer that receives Exchange
Notes for its own account in the Exchange Offer in exchange for Notes that were
acquired by such broker-dealer as a result of market-making or other trading
activities.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"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.
2
"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.
"CEDEL" means Cedel Bank, S.A. or its successors.
"COMMODITY PRICE PROTECTION AGREEMENT" means any forward contract,
commodity swap, commodity option or other similar financial agreement or
arrangement relating to, or the value of which is dependent upon, fluctuations
in commodity prices.
"COMPARABLE TREASURY ISSUE" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
remaining term from the redemption date to the stated maturity of the Notes that
would be utilized, at the time of selection and in accordance with customary
financial practice in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any redemption
date: (1) the average of the bid and asked prices for the Comparable Treasury
Issue, which is expressed in each case as a percentage of its principal amount,
on the third business day preceding such redemption date, as set forth in the
daily statistical release, or any successor release, published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities;" or (2) if such release is not published or does not
contain such prices on such business day, (A) the average of the Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (B) if the Quotation
Agent obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such quotations.
CONSOLIDATED TANGIBLE ASSETS" means Total Assets less the sum of
(a) the total book value of all of the Company's assets and the
assets of the Company's Subsidiaries properly classified as intangible
assets under GAAP, including such items as goodwill, the purchase price
of acquired assets in excess of the fair market value thereof,
trademarks, trade names, service marks, customer lists, brand names,
copyrights, patents and licenses, and rights with respect to the
foregoing; and
(b) all amounts representing any write-up in the book value of
any of the Company's assets or the assets of the Company's Subsidiaries
resulting from a revaluation thereof subsequent to the date of the
Company's then most recent audited financial statements.
3
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee
specified in Section 12.2 hereof or such other address as to which the Trustee
may give notice to the Company; PROVIDED that such address shall be in the
Borough of Manhattan, The City of New York. All notices by the Company sent to
the Trustee at its Corporate Trust Office in the Borough of Manhattan, The City
of New York shall also be sent to the Trustee at: The Bank of New York, 000
Xxxxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000, attention: Corporate Trust Trustee
Administration.
"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 of which such Person is a beneficiary.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEFINITIVE NOTE" means one or more certificated Notes registered
in the name of the Holder thereof and issued in accordance with Section 2.6
hereof, in the form of Exhibit A hereto except that such Note shall not include
the information called for by footnotes 3, 4 and 7 thereof.
"DEPOSITARY" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depositary with respect to the Notes, until a successor will have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" will mean or include such successor.
"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 or exchangeable or for which it is exercisable, is,
or upon the happening of an event or the passage of time or both 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 Date of the Notes.
"DISTRIBUTION COMPLIANCE PERIOD" means the 40-day restricted
period as defined in Regulation S.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder.
4
"EXCHANGE NOTES" means Series B Notes issued pursuant to an
Exchange Offer.
"EXCHANGE OFFER" means an offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Exchange Notes for
Series A Notes.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in the Registration Rights Agreement.
"FAIR MARKET VALUE" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Company.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as are in effect on the Issue
Date of the Notes.
"GLOBAL NOTES" means one or more Notes in the form of Exhibit A
hereto that includes the information referred to in footnotes 3, 4, and 7 to the
form of Note, attached hereto as Exhibit A, issued under this Indenture, that is
deposited with or on behalf of and registered in the name of the Depositary or
its nominee.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.6(g)(ii), which is required to be placed on all Global Notes issued under this
Indenture.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity
Price Protection Agreement.
"HOLDER" means a Person in whose name a Note is registered on the
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 of another Person
(whether by merger, consolidation, acquisition or otherwise) will be deemed to
be Incurred by such Person at the time it becomes such 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 will be considered an
Incurrence of Indebtedness, but the entire face amount of such security will be
deemed Incurred upon the
5
issuance of such security. The term "Incurrence" when used as a noun will
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) 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, any Preferred Stock (but excluding, in each case, any accrued
dividends); and (iv) all obligations of the type referred to in clauses (i) and
(iii) 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. The amount of Indebtedness of
any Person at any date will 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 the amount
outstanding at any time of any Indebtedness issued with original issue discount
will 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 Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"INDIRECT PARTICIPANT" means an entity that, with respect to DTC,
clears through or maintains a direct or indirect, custodial relationship with a
Participant.
"INITIAL PURCHASERS" mean the initial purchasers of the Series A
Notes under the Purchase Agreement, dated June 8, 1999, with respect to the
Series A Notes.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"INTEREST PAYMENT DATE" means the stated due date of an
installment of interest on the Notes.
"INTEREST RATE AGREEMENT" means any interest swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed
to protect the Company or any of its Subsidiaries against fluctuations in
interest rates.
6
"ISSUE DATE" means the date of first issuance of the Notes under
the Indenture.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
PROVIDED, HOWEVER, that, as to any such arrangement in corporate form, such
corporation will not, as to any person of which such corporation is a
Subsidiary, be considered to be a Joint Venture to which such Person is a party.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York, or the city in which the principal
corporate trust office of the Trustee is located, or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"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 and any Sale/Lease-back
Transaction other than a Sale/Lease-back Transaction permitted pursuant to
clause (a) or (c) of Section 4.10.
"LIQUIDATED DAMAGES" means all Liquidated Damages, if any, then
owing pursuant to the Registration Rights Agreement.
"MAKE-WHOLE AMOUNT" means, in connection with any optional
redemption of any Notes, the excess, if any, of (1) the sum, as determined by a
Quotation Agent of the present values of the principal amount of such Notes,
together with scheduled payments of interest from the redemption date to the
stated maturity of the Notes, in each case discounted to the redemption date on
a semi-annual basis, which assumes a 360-day year consisting of twelve 30-day
months, at the Adjusted Treasury Rate over (2) 100% of the principal amount of
the Notes to be redeemed.
"NOTES CUSTODIAN" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"OBLIGATION" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company under the terms of the Notes or
the Indenture, including any Liquidated Damages, if any, due pursuant to the
terms of the Registration Rights Agreement.
7
"OFFERING MEMORANDUM" means the final Offering Memorandum, dated
June 8, 1999, relating to the offer and sale of the Series A Notes.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President of such
Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, that meets the requirements of Sections 10.4 and 10.5
hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.4 and 10.5 hereof. The counsel may be an employee of or counsel to the
Company or any Subsidiary of the Company.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and with respect to The Depository Trust Company, shall include
Euroclear and Cedel.
"PERMITTED LIEN" means any
(1) Liens arising by reason of
(x) operation of law in favor of carriers, warehousemen,
landlords, mechanics, materialmen, laborers, employees or
suppliers in existence for less than 120 days or for more than 120
days which are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which suspend
the collection thereof; or
(y) any interest or title of a lessor under any lease;
(2) Liens in favor of the Company or (other than in the case of
Liens securing the Company's Indebtedness or Indebtedness of any of the
Company's Subsidiaries) its Subsidiaries;
(3) Liens on property of a Person existing at the time such
Person is acquired by, merged into or consolidated with the Company or
any of its Subsidiaries; provided that such Liens were not incurred in
contemplation of such acquisition, merger or
8
consolidation and do not extend to any assets other than those of the
Person acquired by, merged into or consolidated with the Company or
any such Subsidiary;
(4) Liens on property existing at the time of acquisition
thereof by the Company or any of its Subsidiaries provided that such
Liens were not incurred in contemplation of such acquisition;
(5) Liens existing on the date of the Indenture;
(6) Liens to secure taxes, assessments and other government
charges or claims for labor, material or supplies
(x) in respect of obligations which are not overdue, or
(y) which are currently being contested in good faith by
appropriate proceedings if the Company has set aside on its books
adequate reserves with respect thereto, if required, and if no
proceedings have been commenced to foreclose any such Lien;
(7) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(8) Liens in respect of judgments or awards which have been in
force for less than the applicable period for taking an appeal, so long
as execution is not levied thereunder, or in respect of which the Company
or one of its Subsidiaries, as the case may be, at the time in good faith
are prosecuting an appeal or proceedings for review and in respect of
which the Company and its Subsidiaries have maintained reserves in an
amount satisfactory to the Company;
(9) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's Liens under
leases to which the Company or any of its Subsidiaries is a party, and
other minor liens or encumbrances none of which in the Company's opinion
or in the opinion of such Subsidiary interferes materially with the use
of the property affected in the ordinary conduct of the Company's
business or the business of such Subsidiary and which defects do not
individually or in the aggregate have a material adverse effect on the
Company's business and the business of its Subsidiaries on a consolidated
basis;
9
(10) Liens securing Indebtedness in respect of performance
bonds, bankers' acceptances, and surety or appeal bonds entered into by
the Company or its Subsidiaries in the ordinary course of business;
(11) Liens securing Hedging Obligations consisting of Interest
Rate Agreements, Commodity Price Protection Agreements and Currency
Agreements entered into in the ordinary course of business and not for
the purpose of speculation;
(12) Liens securing 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;
(13) Liens securing the Company's Indebtedness and that of its
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 of the Company's assets or
those of any such 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 such
Subsidiary in connection with such disposition;
(14) Liens arising in the ordinary course of business in
connection with obligations (other than obligations for borrowed money)
that are not overdue or which are being contested in good faith and by
appropriate proceedings, including, but not limited to Liens under bid,
performance and other surety bonds, supersedeas and appeal bonds, Liens
on advance or progress payments received from customers under contracts
for the sale, lease or license of goods, software or services and upon
the products being sold or licensed, in each case securing performance of
the underlying contract or the repayment of such advances in the event
final acceptance of performance under such contracts does not occur, and
Liens upon funds collected temporarily from others pending payment or
remittance on their behalf;
(15) purchase money security interests on any property acquired
or held by the Company or its Subsidiaries in the ordinary course of
business securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such property;
PROVIDED, HOWEVER, that
(A) any such Lien attaches to such property concurrently
with or within 20 days after the acquisition
thereof,
10
(B) such Lien attaches solely to the property so
acquired in such transaction, and
(C) the principal amount of the debt secured thereby
does not exceed 100% of the cost of such property.
(16) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with
a creditor depository institution; PROVIDED, HOWEVER, that
(A) such deposit account is not a dedicated cash
collateral account and is not subject to
restrictions against access by the Company in excess
of those set forth by regulations promulgated by the
Federal Reserve Board, and
(B) such deposit account is not intended by the Company
or any of its Subsidiaries to provide collateral to
the depository institution;
(17) rights of holders of notes or debentures issued by the
Company or of its Subsidiaries in deposits placed in trust to legally or
"in substance" defease such notes or debentures;
(18) Any Lien deemed to be created in connection with the
securitization of accounts, receivables, instruments, chattel paper or
other rights to payment of the Company or its Subsidiaries, (a) to the
extent (i) such assets are transferred to a special purpose entity,
(which may be owned by the Company or any Subsidiary but is not
consolidated for accounting purposes with such transferor or owner) where
such transfer is a "true sale" for accounting purposes, and (ii) the face
principal amount of such assets at any time outstanding is not more than
$150,000,000 or (b) which is granted by any such special purpose entity
in the assets so transferred to it; and
(19) Liens securing Indebtedness in an aggregate principal
amount together with all Liens securing other of the Company's
Indebtedness and that of its Subsidiaries outstanding on the date of such
Incurrence (other than Liens described in clauses (1) through (18) above)
not exceeding 15% of Consolidated Tangible Assets.
"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.
11
"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 or trust
over shares of Capital Stock of any other class of such corporation or trust.
"PRINCIPAL" of any Indebtedness (including the Notes) 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 set forth in Section
2.6(g)(i) to be placed on all Notes issued under this Indenture except where
specifically stated otherwise by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"QUOTATION AGENT" means the Reference Treasury Dealer appointed by
the Company.
"RECORD DATE" means a Record Date specified in the Notes, whether
or not such date is a Business Day.
"REFERENCE TREASURY DEALER" means: (1) Banc of America Securities
LLC and its respective successors and two additional Primary Treasury Dealers
selected by the Company; PROVIDED, HOWEVER, that if any of the foregoing cease
to be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company will substitute therefor another Primary Treasury
Dealer; and (2) any other Primary Treasury Dealer selected by the Company.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue, which is expressed in each case as a percentage of its principal amount,
quoted in writing to the Trustee by such quotation agent at 5:00 p.m., New York
City time, on the third business day preceding such redemption date.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
"REG S PERMANENT GLOBAL NOTE" means one or more permanent Global
Notes bearing the Private Placement Legend, that will be issued in an aggregate
amount of
12
denominations equal in total to the outstanding principal amount of the Reg S
Temporary Global Note upon expiration of the Distribution Compliance Period.
"REG S TEMPORARY GLOBAL NOTE" means one or more temporary Global
Notes bearing the Private Placement Legend and the Reg S Temporary Global Note
Legend, issued in an aggregate amount of denominations equal in total to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"REG S TEMPORARY GLOBAL NOTE LEGEND" means the legend set forth in
Section 2.6(g)(iii), which is required to be placed on all Reg S Temporary
Global Notes issued under this Indenture.
"REGULATION S" means Regulation S promulgated under the Securities
Act, as it may be amended from time to time, and any successor provision
thereto.
"REGULATION S GLOBAL NOTE" means a Reg S Temporary Global Note or
a Reg S Permanent Global Note, as the case may be.
"RESPONSIBLE OFFICER" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"RESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
bearing the Private Placement Legend, issued under this Indenture.
"RESTRICTED GLOBAL NOTE" means one or more Global Notes bearing
the Private Placement Legend, issued under this Indenture; PROVIDED, that in no
case shall an Exchange Note issued in accordance with this Indenture and the
terms of the Registration Rights Agreement be a Restricted Global Note.
"RULE 144A" means Rule 144A promulgated under the Securities Act,
as it may be amended from time to time, and any successor provision thereto.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or one of its
Subsidiaries transfers such property to a person and the Company or any of its
Subsidiaries leases it from such person under an operating lease.
13
"SEC" means the United States Securities and Exchange Commission,
or any successor agency.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect from time to time.
"SPECIAL RECORD DATE" means, for payment of any Defaulted
Interest, a date fixed by the Paying Agent pursuant to Section 2.12.
"STATED MATURITY" or "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 upon the happening of any contingency unless such
contingency has occurred).
"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
(1) such Person,
(2) such Person and one or more Subsidiaries of such Person, or
(3) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as provided in Section 9.3.
"TRANSFER RESTRICTED NOTES" means Global Notes and Definitive
Notes that bear or are required to bear the Private Placement Legend, issued
under this Indenture.
14
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means such successor serving hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend,
issued under this Indenture.
"UNRESTRICTED GLOBAL NOTE" means one or more permanent Global
Notes representing a series of Notes that does not bear and is not required to
bear the Private Placement Legend, issued under this Indenture.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
Section 1.2 Other Definitions
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.7
"Authentication Order" 2.2
"Bankruptcy Law" 6.1
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Defaulted Interest" 2.12
"DTC" 2.3
"Legal Defeasance" 8.2
"Paying Agent" 2.3
"Registrar" 2.3
Section 1.3 Incorporation by Reference of Trust Indenture Act
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
15
The following TIA terms used in this Indenture have the following
meanings:
"COMMISSION" means the Securities and Exchange Commission;
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.4 Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) references to sections of or rules under the Securities Act
and the Exchange Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
16
ARTICLE II
THE NOTES
Section 2.1 Form and Dating
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). 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 the Notes Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section 2.6 hereof.
(c) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. 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 in effect at the relevant time shall be
applicable to transfers of beneficial interests in the Regulation S Global Notes
that are held by Participants through Euroclear or Cedel Bank.
Section 2.2 Execution and Authentication
17
Two officers shall sign the Notes for the Company by manual or
facsimile signature. In the case of Definitive Notes, such signatures may be
imprinted or otherwise reproduced on such Notes. If an Officer whose signature
is on a Note no longer holds that office at the time a Note is authenticated,
the Note shall nevertheless be valid. A Note shall not be valid until
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an Officer (an
"Authentication Order"), authenticate Notes for issuance up to the aggregate
principal amount stated in such Authentication Order; PROVIDED that Notes
authenticated for issuance on the Issue Date shall not exceed $450,000,000 in
aggregate principal amount. The aggregate principal amount of Notes outstanding
at any time may not exceed $450,000,000, except in accordance with Section 2.8,
unless the Company delivers to the Trustee an additional Authentication Order
for issuance of up to the aggregate principal amount stated in such
Authentication Order which amount may be unlimited. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company.
In the event that the Company shall issue and the Trustee shall
authenticate any Notes issued under this Indenture subsequent to the Issue Date
pursuant to the preceding paragraph, the Company shall use its best efforts to
obtain the same "CUSIP" number for such Notes as is printed on the Notes
outstanding at such time; PROVIDED, HOWEVER, that if any series of Notes issued
under this Indenture subsequent to the Issue Date is determined, pursuant to an
Opinion of Counsel of the Company in a form reasonably satisfactory to the
Trustee to be a different class of security than the Notes outstanding at such
time for federal income tax purposes, the Company may obtain a "CUSIP' number
for such Notes that is different than the "CUSIP" number printed on the Notes
then outstanding. Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter.
Section 2.3 Registrar, Paying Agent and Depositary
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Notes may be presented for registration
of transfer or for exchange ("Registrar") and an office or agency where Notes
may be presented for payment ("Paying Agent"). The Registrar shall keep a
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 "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify the Trustee in
writing of the name and
18
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar. The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
Neither the Company nor the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on
account of Notes by the Depositary, or for maintaining, supervising or
reviewing any records of the Depositary relating to such Notes. The Company
initially appoints the Trustee to act as the Registrar and Paying Agent and
to act as Notes Custodian with respect to the Global Notes.
Section 2.4 Paying Agent to Hold Money in Trust
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.5 Holder 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish, or shall cause the Registrar
(if other than the Company) to furnish, to the Trustee at least seven 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 the Holders of Notes and
the Company shall otherwise comply with TIA Section 312(a).
Section 2.6 Transfer and Exchange
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
19
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (I) the Company delivers to the Trustee notice from the Depositary
that (x) the Depositary is unwilling or unable to continue to act as
Depositary for the Global Notes and the Company thereupon fails to appoint a
successor Depositary within 90 days or (y) the Depositary is no longer a
clearing agency registered under the Exchange Act, (ii) the Company in its
sole discretion determines that the Global Notes (in whole but not in part)
should be exchanged for Definitive Notes and delivers a written notice to
such effect to the Trustee or (iii) upon request of the Trustee or Holders of
a majority of the aggregate principal amount of outstanding Notes if there
shall have occurred and be continuing a Default or Event of Default with
respect to the Notes; PROVIDED that in no event shall the Reg S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to (x) the
expiration of the Distribution Compliance Period and (y) the receipt by the
Registrar of any certificate identified by the Company and its counsel to be
required pursuant to Rule 903 or Rule 904 under the Securities Act. Upon the
occurrence of any of the preceding events in (I), (ii) or (iii) above,
Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.7 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 this Section 2.6 or Section 2.7 or 2.10
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 2.6(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.6(b), (c) or
(f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, 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 comparable
to those set forth herein 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 Distribution Compliance Period, transfers of beneficial
interests in the Reg S Temporary 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 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 2.6(b)(I).
20
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.6(b)(I) above, the
transferor of such beneficial interest must deliver to the Registrar either (A)
(1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
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 Participant account to be credited with such increase
or (B) (1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (B)(1) above; PROVIDED, that in no event shall Definitive Notes
be issued upon the transfer or exchange of beneficial interests in the Reg S
Temporary Global Note prior to (x) the expiration of the Distribution Compliance
Period and (y) the receipt by the Registrar of any certificates identified by
the Company or its counsel to be required pursuant to Rule 903 and Rule 904
under the Securities Act. Upon consummation of an Exchange Offer by the Company
in accordance with Section 2.6(f) hereof, the requirements of this Section
2.6(b)(ii) shall be deemed to have been satisfied upon receipt by the 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 and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 2.6(h) 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 Section 2.6(b)(ii) above and the 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 B 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 Reg S Temporary Global Note or the Reg S
Permanent Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof.
21
(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 of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, 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, certifies in the applicable Letter of Transmittal that it is not (1)
a Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the 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 C hereto,
including the certifications in item (1)(a) thereof; or (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 B hereto, including the certifications in item (4)
thereof; and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form, and from legal counsel, reasonably acceptable to the
Registrar and 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 no longer required in
order to maintain compliance with the Securities Act.
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 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate 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
22
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 FOR DEFINITIVE
NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form of
Exhibit C 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 B 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 B 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 B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional 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 B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) 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 B hereto, including the certifications in item
(3)(b) thereof; or
23
(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 B 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 2.6(h)
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2, the Trustee shall authenticate and deliver to the
Person designated in the instructions a Restricted Definitive Note in the
appropriate principal amount. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this Section
2.6(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 Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such Restricted
Definitive Notes to the Persons in whose names such Notes are so registered.
Any Restricted Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.6(c)(I) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained
therein.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an Unrestricted
Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the 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 Definitive Note that does not bear the
Private Placement Legend, a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (1)(b) thereof;
24
or (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 Definitive Note that does not bear the
Private Placement Legend, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof; and, in
each such case set forth in this subparagraph (D), an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the Registrar and 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 no longer required in order to maintain
compliance with the Securities Act.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note, then,
upon satisfaction of the conditions set forth in Section 2.6(b)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable
Unrestricted Global Note to be reduced accordingly pursuant to Section 2.6(h)
hereof, and the Company shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.2, the Trustee shall authenticate and deliver to the
Person designated in the instructions an Unrestricted Definitive Note in the
appropriate principal amount. Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.6(c)(iii) 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
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Unrestricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.6(c)(iii) shall not bear the Private Placement
Legend.
(iv) TRANSFER OR EXCHANGE OF REG S TEMPORARY GLOBAL
NOTES. Notwithstanding the other provisions of this Section 2.6, a beneficial
interest in the Reg S Temporary Global Note may not be (A) exchanged for a
Definitive Note prior to (x) the expiration of the Distribution Compliance
Period (unless such exchange is effected by the Company, does not require an
investment decision on the part of the holder thereof and does not violate the
provisions of Regulation S) and (y) the receipt by the Registrar of any
certificates identified by the Company or its counsel to be required pursuant to
Rule 903(c)(3)(B) under the Securities Act or (B) transferred to a Person who
takes delivery thereof in the form of a Definitive Note prior to the events 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.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
25
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive 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 Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
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 C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof; or
(C) if such Restricted Definitive 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 B hereto, including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive 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) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;
26
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if
the Holder of such Restricted Definitive 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 C hereto, including the certifications in
item (1)(c) thereof; or (2) if the Holder of such Restricted Definitive 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 B hereto, including the certifications
in item (4) thereof; and, in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form, and from legal counsel, reasonably acceptable to
the Registrar and 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 no longer required in
order to maintain compliance with the Securities Act. Upon satisfaction of the
conditions of any of the subparagraphs in this Section 2.6(d)(ii), the Trustee
shall cancel the Restricted Definitive Notes so transferred or exchanged and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Notes 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 Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes. If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) of this
Section 2.6(d) 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 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.6(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any
27
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.6(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the 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 B 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 B 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 B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person or
Persons who take delivery thereof in the form of an Unrestricted Definitive Note
if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and Section 2.6(f) hereof, and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in
the distribution of the Exchange Notes 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 a
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes
for an Unrestricted
28
Definitive Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or (2) if the
Holder of such Restricted Definitive Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof; and, in each such
case set forth in this subparagraph (D), an Opinion of Counsel in form, and
from legal counsel, reasonably acceptable to the Registrar and 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 no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(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 2.2 and
an Opinion of Counsel for the Company as to certain matters discussed in this
Section 2.6(f), the Trustee shall authenticate (I) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the sum of (A) the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not Broker-Dealers, (y) they are not participating
in a distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Exchange
Offer and (B) the principal amount of Definitive Notes exchanged or transferred
for beneficial interests in Unrestricted Global Notes in connection with the
Exchange Offer pursuant to Section 2.6(d)(ii), (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer (other than
Definitive Notes described in clause (I)(B) immediately above) and (iii)
Restricted Definitive Notes in an aggregate principal amount equal to the
principal amount of Restricted Definitive Notes accepted for exchange in a
private exchange offer pursuant to the terms of the Registration Rights
Agreement. Concurrently 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, upon receipt of an
Authentication Order pursuant to Section 2.2, the Trustee shall authenticate and
deliver to the Persons designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
The Opinion of Counsel for the Company referenced above shall
state that: the issuance and sale of the Exchange Notes by the Company have been
duly authorized and, when
29
executed and authenticated in accordance with the provisions of this
Indenture and delivered in exchange for Series A Notes in accordance with
this Indenture and the Exchange Offer, will be entitled to the benefits of
this Indenture and will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms except as the
enforceability thereof may be limited by (x) bankruptcy, fraudulent transfer,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (y) equitable principles of general applicability
(regardless of whether enforceability is considered at equity or in law).
(g) LEGENDS. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE
DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED UNDER THE INDENTURE PURSUANT
TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1)(A) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (D) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM
30
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), AS LONG AS THE REGISTRAR
RECEIVES A CERTIFICATION OF THE TRANSFEROR AND AN OPINION OF COUNSEL THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL AND EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTION SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii), (f)(I) or (f)(ii) to this
Section 2.6 (and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. To the extent required by the
Depositary, each Global Note shall bear legends in substantially the following
forms:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (00 XXXXX
XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
31
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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."
(iii) REG S TEMPORARY GLOBAL NOTE LEGEND. To the extent
required by the Depositary, each Reg S Temporary Global Note shall bear a legend
in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE 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."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive 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
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement may be made on such Global Note
by the Trustee or by the Depositary 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 may be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) 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
Definitive Notes upon receipt of an Authentication Order.
32
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer 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
and 3.6 hereof).
(iii) The 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 Definitive Notes issued upon
any registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same Indebtedness,
and entitled to the same benefits under this Indenture, as the Global Notes or
Definitive 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 any Notes during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption under Section 3.2 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
Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section 2.6
to effect a registration of transfer or exchange may be submitted by facsimile.
(ix) Each Holder of a Note agrees to indemnify the
Company and the Trustee against any liability that may result from the transfer,
exchange or assignment of
33
such Xxxxxx's Note in violation of any provision of this Indenture and/or
applicable United States Federal or state securities law.
(x) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or among
Depositary Participants or beneficial owners of interests in any Global Note)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Registrar pursuant to this
Section 2.6, the Registrar's duties shall be limited to confirming that any such
certifications and certificates delivered to it are in the form of Exhibits A,
B, C and D attached hereto. The Registrar shall not be responsible for
confirming the truth or accuracy of representations made in any such
certifications or certificates.
Section 2.7 Replacement Notes
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee and the Company receive evidence (which evidence may be from the
Trustee) to their satisfaction of the destruction, loss or theft of any Note,
the Company shall issue and the Trustee, upon receipt of an Authentication
Order, shall authenticate a replacement Note if the Trustee's requirements are
met. An indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Company may charge for its expenses in replacing a
Note. Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8 Outstanding Notes
The Notes outstanding at any time are all the Notes authenticated
by the Trustee (including any Note represented by a Global Note) except for
those cancelled by it or at its direction, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.9 hereof, 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 2.7 hereof,
such Note ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a BONA FIDE purchaser.
34
If the principal amount of any Note is considered paid under Section 4.1
hereof, it ceases to be outstanding and interest on it ceases to accrue. If
the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or the maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes
shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.9 Treasury Notes
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Affiliate of the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded.
Section 2.10 Temporary Notes
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate Definitive Notes in exchange for temporary Notes. Holders of
temporary Notes shall be entitled to all of the benefits of this Indenture.
Section 2.11 Cancellation
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or an Affiliate of the Company), and no one else
shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall dispose of cancelled Notes in
accordance with its customary procedures (subject to the record retention
requirement of the Exchange Act). The Trustee shall provide the Company a list
of all Notes that have been cancelled from time to time as requested by the
Company. The Company may not issue new Notes to replace Notes that it has paid
or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on
35
the defaulted interest at the rate and in the manner provided in Section 4.1
hereof and in the Note (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant Record Date, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the 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 and the Paying Agent 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 Paying Agent an amount of cash equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements reasonably satisfactory to the Paying Agent for such
deposit prior to the date of the proposed payment, such cash when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause (1). Thereupon the
Paying Agent 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 Paying Agent of the notice of the proposed
payment. The Paying Agent shall promptly notify the Company and the
Trustee 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 its address as it appears
in the Note register maintained by the Registrar not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the persons
in whose names the Notes (or their respective predecessor Notes) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee and the Paying Agent of the
proposed payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee and the Paying Agent.
Subject to the foregoing provisions of this Section, 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.
36
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.
ARTICLE III
REDEMPTION
Section 3.1 Notices to Trustee
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 40 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days (unless a longer period is acceptable to the Trustee) before a
redemption date, an Officers' Certificate setting forth (I) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price.
Section 3.2 Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
PRO RATA basis, by lot or in accordance with any other method the Trustee in its
sole discretion considers fair and appropriate. In the event of partial
redemption by lot, the particular Notes to be redeemed shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes in denominations of larger than $1,000 selected shall be in amounts of
$1,000 or integral multiples of $1,000; except that if all of the Notes of a
Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not an integral multiple of $1,000, shall be redeemed. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
37
Section 3.3 Notice of Redemption
Subject to the provisions of Section 3.7 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including the
CUSIP numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue
on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 10 days prior to the date
that notice of the redemption is to be mailed, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.
Section 3.4 Effect of Notice of Redemption
38
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.5 Deposit of Redemption Price
Prior to 11:00am, New York time, on the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and accrued and unpaid
interest (and Liquidated Damages, if any) on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued and unpaid
interest (and Liquidated Damages, if any) on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest (and Liquidated Damages, if
any) shall be paid to the Person in whose name such Note was registered at the
close of business on such Record Date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal compounded
as of each Interest Payment Date, in each case at the rate provided in the Notes
and in Section 4.1 hereof.
Section 3.6 Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.7 Optional Redemption
(a) The Company will have the right to redeem the Notes, in
whole or in part, at any time and from time to time, upon not less than 30
nor more than 60 days prior notice mailed by first class mail to each Holder
at its last registered address, at a redemption price equal to the sum of (1)
100% of the principal amount of the Notes being redeemed, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption
date, and (2) the Make-Whole Amount, if any, with respect to such Notes.
39
(b) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 3.8 No Mandatory Redemption
The Company shall not be required to make mandatory redemption
payments with respect to the Notes (however, the Company is required to offer to
repurchase Notes in accordance with the provisions of Section 4.8 below). The
Notes shall not have the benefit of any sinking fund.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Notes
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 12:00 noon Eastern time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due.
The Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement and
herein. Principal of and any interest or Liquidated Damages on the Notes will
be payable, subject to any applicable laws and regulations, at the offices of
the Paying Agent, except that, at the Company's option, payment of any interest
or Liquidated Damages may be made by check mailed to the address of the person
entitled thereto as such address appears in the Security Register.
Any payment due on any day that is not a Business Day need not be
made on such day, but may be made on the next succeeding Business Day, with the
same force and effect as if made on the due date, and no interest or Liquidated
Damages will be payable on the date of payment for the period from and after the
due date.
The Company shall pay interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue principal at the
then applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any, compounded as of each Interest Payment Date (without regard to any
applicable grace period) at the same rate to the extent lawful.
40
Section 4.2 Maintenance of Office or Agency
The Company shall maintain in the Borough of Manhattan, The City
of New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of 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, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such additional
designations; PROVIDED that no such designation or recission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office as one
such office or agency of the Company in accordance with Section 2.3 hereof.
Section 4.3 SEC Reports and Reports to Holders
(a) Regardless of whether required by the rules and regulations
of the SEC, so long as any Notes are outstanding, the Company will furnish to
the Trustee and each Holder of Notes, within 15 days after the Company is or
would have been required to file with the SEC:
(1) all quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q
and 10-K if the Company were required to file such forms, including for
each a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information only,
a report thereon by the Company's independent certified public
accountants; and
(2) all information that would be required to be
contained in a filing with the SEC on Form 8-K if the Company were
required to file such reports.
41
From and after the time the Company files a registration statement with
the SEC with respect to the Notes, the Company will file the above information
with the SEC so long as the SEC will accept such filings.
(b) For so long as any Notes remain outstanding and during any
period in which the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company
shall make available (which shall include filings by XXXXX) to all Holders and
to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.4 Compliance Certificate
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company and its Subsidiaries
have kept, observed, performed and fulfilled their obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company and its
Subsidiaries are not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and be continuing, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best
of his or her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.
The Company shall provide the Trustee with timely written notice of any change
in its fiscal year end, which is currently December 31.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within five Business Days of any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.5 Stay, Extension and Usury Laws
42
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that 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 shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.6 Limitation on Liens Securing Indebtedness
So long as any of the Notes remain outstanding, the Company will
not, and will not permit any of its Subsidiaries to, create or assume any
Indebtedness which is secured by a Lien, other than Permitted Liens, of or upon
any of its assets or those of its Subsidiaries, whether now owned or hereafter
acquired, without equally and ratably securing the Notes by a Lien ranking
ratably with and equal to (or, at the Company's option or in the case of liens
securing Indebtedness ranked subordinate to the Notes, senior to) such secured
Indebtedness.
Section 4.7 Limitation on Transactions with Affiliates
The Company will not, and will not permit any of its Subsidiaries
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 of
its Affiliates (an "Affiliate Transaction") unless the terms thereof
(1) are materially no less favorable to the Company or its
Subsidiary than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not an
Affiliate;
(2) if such Affiliate Transaction (or series of related
Affiliate Transactions) involve aggregate payments in an amount in excess
of $10 million in any one year, (x) comply with the terms described in
clause (1) and (y) 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 $20 million in any one year, (x) comply with the terms described in
clause (2) and (y) 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 Subsidiaries.
43
The provisions described above will not prohibit
(1) any issuance of securities or any payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock option and stock ownership plans and other
stock-based employee compensation in the ordinary course of business and
approved by the Board of Directors,
(2) the grant of stock options or similar rights to the
Company's employees, officers and directors or those of any of its
Subsidiaries in the ordinary course of business and pursuant to plans
approved by the Board of Directors,
(3) loans or advances to the Company's employees, officers or
directors or those of any of its Subsidiaries in the ordinary course of
business,
(4) fees, compensation or employee benefit arrangements paid to
and indemnity provided for the benefit of the Company's directors,
officers or employees or those of any of its Subsidiaries in the ordinary
course of business,
(5) any Affiliate Transaction between the Company and its
Subsidiary or Joint Venture, or between any of its Subsidiaries or Joint
Ventures (so long as the other stockholders or partners of any
participating Subsidiaries or Joint Ventures which are not the Company's
wholly owned Subsidiaries are not themselves the Company's Affiliates)
and
(6) any transactions effected pursuant to agreements in effect
on the Issue Date; PROVIDED, that such transactions are effected pursuant
to terms substantially similar to the terms of such agreements as in
effect on the Issue Date.
Section 4.8 Repurchase of Notes at the Option of the Holder if the ABR Merger
Has Not Been Consummated
If the merger of Spring Acquisition Corp., a Florida corporation
and a wholly-owned subsidiary of the Company into ABR has not been consummated
on or before December 31, 1999 on terms substantially similar to those contained
in the ABR Merger Agreement, except for such changes therein as would not
materially adversely affect the Holders of the Notes (the "ABR Event"), each
Holder of Notes will have the right (the "Repurchase Right"), at such holder's
option, subject to the terms and conditions of this Indenture, to require the
Company to repurchase all of such Holder's Notes, or any portion thereof which
equals $1,000 or any integral multiple thereof, on the date (the "Repurchase
Date") fixed by the Company that is not less than 45 days nor more than 75 days
after the date of the Company Notice (as defined) at a price equal to 100% of
the principal amount of the Notes validly tendered and not
44
withdrawn, plus accrued and unpaid interest, if any, to the Repurchase Date (the
"Repurchase Price").
Within 30 days after the occurrence of the ABR Event, the Company
is obligated to send, by first class mail, to the Trustee and to each Holder of
the Notes a notice (the "Company Notice") of the occurrence of the ABR Event and
the Repurchase Right arising as a result, thereof, setting forth, among other
things, the terms and conditions of, and the procedures required for the
exercise of, the Repurchase Right (the "Repurchase Offer"). Such Company Notice
shall contain all instructions and materials necessary to enable the Holders to
tender Notes pursuant to the Repurchase Offer. Such Notice shall state:
(1) that the Repurchase Offer is being made pursuant to this
Section 4.8 and that all Notes validly tendered and not withdrawn will be
accepted for payment;
(2) the Repurchase Price and the Repurchase Date;
(3) that any Notes not tendered will continue to accrue
interest if interest is then accruing;
(4) that, unless the Company defaults in making payment
therefor, any Notes accepted for payment pursuant to the Repurchase Offer
shall cease to accrue interest after the Repurchase Date;
(5) that Holders electing to have Notes purchased pursuant to
the Repurchase Offer will be required to deliver at or before the close
of business on the Repurchase Date a written notice either to the Company
or an agent designated by the Company for such purpose (the "Offer
Agent") and the Trustee of the Holder's exercise of the Repurchase Right
specifying the Notes with respect to which such right is being exercised;
(6) that Holders will be entitled to withdraw their election if
the Offer Agent receives, not later than close of business on the
Business Day immediately prior to the Repurchase Date, a written notice
setting forth the name of the Holder, the principal amount of the Notes
the Holder delivered for repurchase and a statement that such Xxxxxx is
withdrawing its election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased part or
of the Notes surrendered; and
(8) the circumstances and relevant facts regarding such ABR
Event.
45
To exercise the Repurchase Right, a Holder of Notes must deliver
at or before the close of business on the Business Day immediately prior to the
Repurchase Date written notice to the Company (or an agent designated by the
Company for such purpose) and the Trustee of the Holder's exercise of the
Repurchase Right specifying the Notes with respect to which the right is being
exercised. A notice of exercise may be withdrawn by the Holder by a written
notice of withdrawal delivered to the Company or its agent at any time at or
before the close of business on the Business Day immediately prior to the
Repurchase Date.
On or before the Repurchase Date, the Company shall (I) accept for
payment Notes or portions thereof tendered pursuant to the Repurchase Offer,
(ii) deposit with the Offer Agent U.S. Dollars sufficient to pay the Repurchase
Price of all Notes or portions thereof so tendered and accepted and (iii)
deliver to the Trustee Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof being purchased by the Company. The
Offer Agent shall promptly mail or deliver to the Holders of Notes so accepted
payment in an amount equal to the Repurchase Price and the Company shall execute
and issue, and the Trustee shall promptly authenticate and mail or deliver to
such Holders, new Notes equal in principal amount to any unpurchased portion of
the Notes surrendered. Any Notes not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Repurchase Offer as soon as practicable after the
Repurchase Date.
The Company will comply with Rule 14e-1 under the Exchange Act to
the extent applicable at that time and with all other applicable federal and
state securities laws in connection with the Repurchase Right and in the event
compliance with such laws would conflict with the terms of this covenant,
compliance with such laws shall not be declared a breach of this covenant.
This Section 4.8 does not permit the Board of Directors to waive
or otherwise amend the Company's obligation to repurchase the Notes at the
option of the Holders pursuant to the Repurchase Right upon the occurrence of
the ABR Event without the consent of each such Holder.
Section 4.9 Corporate Existence
Subject to Article V hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (I) its
corporate existence in accordance with its organizational documents (as the same
may be amended from time to time) and (ii) its rights (charter and statutory);
PROVIDED, HOWEVER, that the Company shall not be required to preserve any such
right 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
46
its Subsidiaries, taken as a whole, and that the loss thereof would not have a
material adverse effect on the ability of the Company to satisfy its obligations
under the Notes and this Indenture.
Section 4.10 Limitation on Sale and Lease-Back Transactions
So long as any of the Notes remain outstanding, the Company will
not, and will not permit any Subsidiary to, enter into any sale and lease-back
transactions with respect to any assets (other than any sale leaseback
transaction involving leases for a term of not more than three years), unless
either
(a) it relates to the Company's headquarters building now under
construction or any real property now owned by ABR,
(b) the Company or such Subsidiary would be entitled to incur
Indebtedness secured by a Permitted Lien on the assets to be leased in an
amount at least equal to the Attributable Debt in respect of such
transaction, or
(c) the proceeds of the sale of the assets to be leased are at
least equal to their fair market value (as determined by the Company's
Board of Directors) and the proceeds are applied to the purchase or
acquisition (or, in the case of real property, the construction) of
tangible assets or to the retirement (other than at maturity or pursuant
to a mandatory sinking fund or mandatory redemption provision) of the
Company's Indebtedness for money borrowed which ranks PARI PASSU to the
Notes.
ARTICLE V
SUCCESSORS
Section 5.1 Merger, Consolidation and Sale of Assets
The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or, directly
or indirectly, sell, assign, transfer, lease, convey or otherwise dispose of (or
cause or permit any of its Subsidiaries to sell, assign, transfer, lease, convey
or otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis) to any Person, unless:
(1) either (a) the Company is the surviving or continuing
corporation or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition all or substantially all of the Company's assets (the
"Surviving Entity") (x) is a corporation organized and validly existing
under
47
the laws of the United States or any state thereof or the District
of Columbia and (y) expressly assumes, by supplemental indenture (in form
and substance satisfactory to the Trustee) executed and delivered to the
Trustee, the due and punctual payment of the principal of, and Liquidated
Damages, if any, and interest on, all of the Notes and the performance of
every covenant of the Notes, the Indenture and the Registration Rights
Agreement on the part of the Company to be performed or observed by the
Company;
(2) immediately before and immediately after giving effect to
the transaction and the assumption described in clause (1)(b)(y) above,
no Default or Event of Default has occurred and is continuing; and
(3) the Company or the Surviving Entity has delivered to the
Trustee an officers' certificate and an opinion of counsel, each stating
that the consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition, and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture, comply with the applicable provisions of this Indenture and
that all conditions precedent in this Indenture relating to the
transaction have been satisfied.
For purposes of the foregoing description, the transfer (by lease,
assignment, sale or otherwise in a single transaction or series of transactions)
of all or substantially all of the assets of one or more of the Company's
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the Company's assets, will be deemed to be the transfer of all or substantially
all of the Company's assets.
Section 5.2 Successor Corporation Substituted
Upon any consolidation combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with Section
5.1 hereof, in which the Company is not the continuing corporation, the
Surviving Entity formed by such consolidation or into which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to and be substituted for, and may exercise
every right and power of, the Company under this Indenture and the Notes with
the same effect as if such Surviving Entity had been named therein as the
Company, and (except in the case of a lease) the Company shall be released from
the obligations under the Notes and this Indenture except with respect to any
obligations that arise from, or are related to, such transaction.
ARTICLE VI
DEFAULTS AND REMEDIES
48
Section 6.1 Events of Default
"Event of Default," wherever used herein, means any one of the
following events:
(a) the failure by the Company to pay any installment of
interest (or Liquidated Damages, if any) on the Notes as and when the same
becomes due and payable and the continuance of any such failure for 30 days;
(b) the failure by the Company or any Subsidiary of the Company
to pay all or any part of the principal, or premium, if any, on the Notes when
and as the same becomes due and payable at maturity, redemption, by acceleration
or otherwise;
(c) failure by the Company or any Subsidiary of the Company to
perform any other covenant in this Indenture, continued for 30 days after notice
from the Trustee or Holders of at least 25% in principal amount of the Notes
then outstanding;
(d) (x) the Company or any of its Subsidiaries fails to pay
any of the Company's Indebtedness under one or more agreements or instruments
evidencing an aggregate principal amount of Indebtedness equal to at least $15
million (or its equivalent in any other currency or currencies) as and when that
Indebtedness becomes due and payable, after the expiration of any applicable
grace period, or
(y) any other event occurs which, under one or more
agreements or instruments evidencing the Company's Indebtedness of or that of
any Subsidiary, obligates the Company or its Subsidiary to pay an aggregate
principal amount of Indebtedness equal to at least $15 million (or its
equivalent in any other currency or currencies) prior to the date on which it
otherwise would have become due and payable; and
(e) a court having jurisdiction enters a decree or order for
(A) relief in respect of the Company or any Significant Subsidiary in an
involuntary case under any applicable Bankruptcy Law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(f) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case under any
such law, (B) consents to the appointment of or taking possession by a receiver,
liquidator, custodian, trustee, sequestrator
49
or similar official of the Company or any Significant Subsidiary or for all
or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the benefit
of creditors.
The term "Bankruptcy Law" means the Bankruptcy Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration
If an Event of Default (other than an Event of Default specified
in clause (e) or (f) of Section 6.1 that occurs with respect to the Company)
occurs and is continuing under this Indenture, then in every such case, unless
the principal of all of the Notes shall have already become due and payable,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and
accrued interest of all of the Notes to be due and payable immediately. If an
Event of Default described in clause (e) or (f) of Section 6.1 occurs, all
unpaid principal of, premium, if any, and accrued interest and Liquidated
Damages on the Notes then outstanding will ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect
to the Notes has been made, but before a judgment or decree based on such
acceleration has been obtained, the Holders of not less than a majority in
aggregate principal amount of then outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul, on behalf of all Holders, any
such acceleration if:
(1) the Company has paid or deposited with the Trustee cash sufficient
to pay: (a) all overdue interest and Liquidated Damages, if any,
on all Notes; (b) the principal of (and premium, if any,
applicable to) any Notes which would become due other than by
reason of such declaration of acceleration, and interest thereon
at the rate borne by the Notes; (c) to the extent that payment of
such interest is lawful, interest upon overdue interest at the
rate borne by the Notes compounded as of each Interest Payment
Date; (d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee and its agents and counsel, and all other amounts
due the Trustee under Section 7.7; and
(2) all Events of Default, other than the non-payment of the principal
of, premium, if any, and interest (and Liquidated Damages, if any)
on the Notes
50
which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
6.4.
Notwithstanding the previous sentence of this Section 6.2, no
waiver shall be effective against any Holder for any Event of Default or event
which with notice or lapse of time or both would be an Event of Default with
respect to (i) any covenant or provision which cannot be modified or amended
without the consent of the Holder of each outstanding Note affected thereby,
unless all such affected Holders agree, in writing, to waive such Event of
Default or other event and (ii) any provision or covenant requiring
supermajority approval to amend, unless such default has been waived by such a
supermajority. No such waiver shall cure or waive any subsequent default or
impair any right consequent thereon.
Section 6.3 Other Remedies
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults
Subject to Section 6.7, the Holders of at least a majority in
principal amount of the outstanding Notes by written notice to the Company and
to the Trustee, may, on behalf of all Holders, waive any existing or past
Default or Event of Default hereunder and its consequences under this Indenture,
except a default:
(1) in the payment of principal of, premium, if any, or
interest on any Note not yet cured as specified in clauses
(a) and (b) of Section 6.1 hereof;
(2) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the
consent of the Holder of each outstanding Note affected,
unless all such affected Holders agree, in writing, to
waive such default; or
(3) the rescission of which would conflict with any judgment or
decree of a court of competent jurisdiction.
51
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 arising therefrom.
Section 6.5 Control by Majority
Holders of at least a majority in aggregate principal amount of
the then outstanding Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines in good faith may be unduly prejudicial to the rights of other
Holders of Notes not joining in the giving of such direction or that may involve
the Trustee in personal liability and the Trustee may take any other action it
deems proper that is not inconsistent with any such direction received from
Holders of the Notes.
Section 6.6 Limitation on Suits
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any costs, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
Section 6.7 Rights of Holders of Notes to Receive Payment
52
Notwithstanding any other provision of this Indenture, except as
permitted by Section 9.2, the right of any Holder of a Note to receive payment
of the principal of, premium and Liquidated Damages, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase) or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee
If an Event of Default specified in Section 6.1 occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest compounded as of each Interest Payment Date and 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.
Section 6.9 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. 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, 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 the Holders, vote for the
53
election of a trustee in bankruptcy or similar official and may be a member of
the creditor's committee.
Section 6.10 Priorities
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due
under Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection (including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel);
SECOND: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium and Liquidated Damages, if
any, and interest, respectively; and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a Record Date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.7 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee
54
(a) If an Event of Default of which the Trustee has knowledge
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 its exercise, as a prudent man would exercise or use under the
circumstances in the conduct of its own affairs.
(b) Except during the continuance of an Event of Default of
which the Trustee has knowledge:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, 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. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by an Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
Sections 7.1 and 7.2.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
55
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2 Rights of Trustee
(a) In connection with the Trustee's rights and duties under
this Indenture, the Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting under this
Indenture, it may require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.1 hereof, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article IV hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (I) any Event of Default
occurring pursuant to Sections 6.1(a), 6.1(b) and 4.1 or (ii) any Default or
Event of Default of which a Responsible Officer of the Trustee shall have
received
56
written notification in the manner set forth in this Indenture or an
officer in the corporate trust department of the Trustee shall have obtained
actual knowledge.
(h) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee may, in its discretion, make such further inquiry or investigation
into such facts or matters as it may see fit.
(i) 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.
(j) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 7.3 Individual Rights of Trustee
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
Section 7.4 Trustee's Disclaimer
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.5 Notice of Defaults
If a Default or Event of Default occurs and is continuing and if
it is actually known to a Responsible Officer of the Trustee, the Trustee shall
mail to Holders of Notes a
57
notice in the manner and to the extent provided by Section 313-C- of the TIA
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may withhold the notice
if and so long as, in good faith, it determines that withholding the notice
is in the interests of the Holders of the Notes.
Section 7.6 Reports by Trustee to Holders of the Notes
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the 12
months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall
also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange and of any delisting thereof.
Section 7.7 Compensation and Indemnity
The Company shall pay to the Trustee from time to time such
compensation, as the Company and the Trustee shall from time to time agree in
writing, for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee or any predecessor
Trustee and their agents for, and hold them harmless against, any and all
losses, liabilities, damages, claims or expenses (including reasonable
attorneys' fees and taxes (other than taxes based upon, measured by or
determined by the income or revenue of the Trustee) incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.7) and defending
itself against any claim (whether asserted by the Company or any Holder or
any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except to the extent any such loss,
liability, damages, claims or expense may be attributable to its negligence,
bad faith or willful misconduct. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations
58
hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel but shall
not be indemnified by the Company for the fees and expenses of such counsel
except to the extent that a conflict exists with respect to the
representation of both parties by the same counsel. The Company need not pay
for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section
which become past due, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.1(e) or 6.1(f) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.8 Replacement of Trustee
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of
Notes of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
59
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Xxxxxxx does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of
a successor Trustee, at the expense of the Company.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee;
PROVIDED all sums owing to the Trustee hereunder have been paid and subject
to the Lien provided for in Section 7.7 hereof. Notwithstanding replacement
of the Trustee pursuant to this Section 7.8, the Company's obligations under
Section 7.7 hereof shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Xxxxxx, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall
be the successor Trustee.
Section 7.10 Eligibility; Disqualification
There shall at all times be a Trustee hereunder that is a
corporation or trust company (or a member of a bank holding company)
organized and doing business under the laws of the United States of America
or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has (or the bank holding company of
which it is a member has) a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
60
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject
to TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article
VIII.
Section 8.2 Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the applicable conditions set forth in Section 8.4 hereof, be
deemed to have been discharged from its 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 8.5 hereof and
the other Sections of this Indenture referred to in (a) and (b) below, and to
have satisfied all its other obligations under such Notes and this Indenture
(and the 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: (a) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.4 hereof, and as more fully set
forth in such Section, payments in respect of the principal of, premium, if
any, and interest and Liquidated Damages, if any, on such Notes when such
payments are due, (b) the Company's obligations with respect to such Notes
under Article II and Section 4.2 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations
in connection therewith and (d) this Article VIII. Subject to compliance with
this Article VIII,
61
the Company may exercise its option under this Section 8.2 notwithstanding
the prior exercise of its option under Section 8.3 hereof.
Section 8.3 Covenant Defeasance
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, subject to the satisfaction of the
applicable conditions set forth in Section 8.4 hereof, the Company shall be
released from its obligations under Sections 4.3, 4.4, 4.6, 4.7, 4.8 and 4.10
hereof 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 6.1 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 8.1 hereof of the option applicable to this Section 8.3 hereof,
subject to the satisfaction of the applicable conditions set forth in Section
8.4 hereof, (x) Sections 6.1-C- and 6.1(d) hereof shall not constitute Events
of Default and (y) Sections 6.1(e) and 6.1(f) shall not constitute Events of
Default as of the 91st day following the occurrence of the Company's exercise
of Covenant Defeasance; PROVIDED, HOWEVER that for all other purposes as set
forth herein, such Covenant Defeasance provisions shall be effective.
Section 8.4 Conditions to Legal or Covenant Defeasance
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) The Company must make an irrevocable deposit (a
"Deposit") with the Trustee, in trust, for the benefit of the Holders, of
U.S. Dollars or 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 the principal of, premium, if
any, and interest on such Notes on the stated date for payment thereof or on
the applicable redemption date, as the case may be, of such principal or
installment of principal of or interest on such Notes; provided, that the
Trustee shall have received an irrevocable written
62
order from the Company instructing the Trustee to apply such U.S. Dollars or
the proceeds of such U.S. Government Obligations to said payments with
respect to such Notes.
(b) In the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an opinion of nationally
recognized tax counsel confirming that (A) the Company has received from, or
there has been published by, the U.S. Internal Revenue Service a ruling or
(B) since the date of the Indenture, 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 nationally recognized tax counsel shall confirm
that the Holders 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;
(c) In the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an opinion of nationally
recognized tax counsel confirming that the Holders 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;
(d) 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 incurrence of Indebtedness all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this Article
VIII concurrently with such incurrence);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of or constitute a default under this
Indenture or any other material agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company of any of its
Subsidiaries is bound;
(f) The Company shall have delivered to the Trustee an
Officers' Certificate stating that (I) the Deposit was not made with intent
to hinder, delay, or defraud any of the Company's creditors;
(g) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent (other than, in the case of such legal opinion,
paragraph (f) as to which such counsel need express no opinion) provided for
or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with; and
(h) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that on and after the 90th day after the
Deposit, and assuming that no
63
Holder is a Company "insider," as that term is defined in Section 101 of
title 11, United States Code (the "Bankruptcy Code"), the cash or securities
so deposited will not be subject to avoidance and repayment under Sections
547 and 550 of the Bankruptcy Code.
If all conditions in clauses (a) through (h) have been satisfied, the
Legal or Covenant Defeasance (as the case may be) shall occur and be
effective for all purposes on the 91st day after the date of a Deposit,
unless on and as of the date of the Deposit, a Default or Event of Default
has occurred and is continuing (other than one resulting from the borrowing
of funds used to make the Deposit), or unless an Event of Default under
Section 6.1(e) or (f) herein occurs on or before and continues through the
90th day after the date of the Deposit.
Section 8.5 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
Subject to Section 8.6 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as Paying Agent) as
the Trustee may determine, to the Holders of such Notes of all sums due and
to become due thereon in respect of principal, premium, if any, and interest
(and Liquidated Damages, if any), but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.4 hereof or the
principal and interest received in respect thereof, other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.6 Repayment to Company
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,
premium, if any, Liquidated Damages,
64
if any, or interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, Liquidated Damages, if any, or interest
has become due and payable shall be paid to the Company on its written
request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as a 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 the New York
Times and The Wall Street Journal (national edition), 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 notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.7 Reinstatement
If the Trustee or Paying Agent is unable to apply any United
States legal tender or U.S. Government Obligations in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.2 or 8.3 hereof, as the case may be; PROVIDED, HOWEVER, that,
if the Company makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
Section 8.8 SATISFACTION AND DISCHARGE
Upon the direction of the Company, this Indenture will be
discharged and will cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Notes as expressly provided
for herein) as to all outstanding Notes, 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
(1) either
(a) all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter been repaid to the Company or discharged
from such trust) have been delivered to the Trustee for
65
cancellation, or
(b) all Notes not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee
in the name, and at the expense, of the Company, and
the Company, in the case of (I), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee funds in trust in an
amount sufficient to pay and discharge the entire
Indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, including the
principal of and any Liquidated Damages and interest
on such Notes to the date of deposit or to the
Stated Maturity or Redemption Date thereof;
(2) the Company has paid all other sums payable hereunder by
the Company in respect of the outstanding Notes; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel satisfactory to the Trustee, each
stating that all conditions precedent hereunder relating to the
satisfaction and discharge of this Indenture in respect of the Notes of
such series have been complied with.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1 Without Consent of Holders of Notes
Notwithstanding Section 9.2 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes, without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
66
(c) to provide for the assumption of the Company's
obligations to the Holders of the Notes in the case of a merger or
consolidation pursuant to Article V hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely
affect the rights hereunder of any Holder of the Notes in any material
respect;
(e) to comply with the provisions of the Depositary,
Euroclear or Cedel or the Trustee with respect to the provisions of this
Indenture or the Notes relating to transfers and exchanges of Notes or
beneficial interests therein; or
(f) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with the Company in
the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental Indenture
that adversely affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.2 With Consent of Holders of Notes
Except as expressly stated otherwise in this Section 9.2, and
subject to Sections 6.4 and 6.7 hereof, the Company and the Trustee may amend
or supplement this Indenture and the Notes, with the consent of the Holders
of a majority in aggregate principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, the Notes), and, subject
to Sections 6.4 and 6.7 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Notes (other than a provision which cannot
be modified or amended under this Indenture without the consent of the Holder
of each outstanding Note affected) may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes (including consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Notes).
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all
Holders, consideration for such Holder's
67
consent to such amendment, supplement or waiver.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.6 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental Indenture unless such amended or supplemental
Indenture adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.4 and 6.7 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes, except a default in the payment
of the principal or interest on any Notes or in respect of a provision which
cannot be modified or amended under this Indenture without the consent of the
Holder of each outstanding Note affected. An amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(a) change the final Stated Maturity on any Note, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption thereof pursuant
to Article III hereof, or change the place of payment where, or the coin or
currency in which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or in the case of
redemption pursuant to Article III hereof, on or after the redemption date),
or alter the provisions (including the defined terms used herein) of Article
III of this Indenture in a manner adverse to the Holders; or
(b) reduce the percentage in principal amount of the outstanding
Notes, the consent of whose Holders is required for modification or amendment
of the Indenture or for waiver of compliance with the Indenture or for waiver
of defaults provided for in this Indenture; or
68
(c) change the Company's obligation to maintain an office or agency
in the places and for the purposes specified in this Indenture; or
(d) waive or otherwise amend the Company's obligation to repurchase
the Notes at the option of the Holders pursuant to the Repurchase Right upon
the occurrence of the ABR Event pursuant to Section 4.8 hereof.
Section 9.3 Compliance with Trust Indenture Act
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective (as
determined by the Company and which may be prior to any such amendment,
supplement or waiver becoming operative), a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same Indebtedness as
the consenting Holder's Note, even if notation of the consent is not made on
any Note. However, any such Holder of a Note or subsequent Holder of a Note
may revoke the consent as to its Note if the Trustee receives written notice
of revocation before the date the waiver, supplement or amendment becomes
effective (as determined by the Company).
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed
by the Company notwithstanding the provisions of the TIA. If a record date
is fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it makes a change described in any of clauses
(a) through (d) of Section 9.2 hereof, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Note who has consented
to it and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note; PROVIDED, that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal and premium of and interest (and Liquidated Damages, if
any) on a Note, on or after the respective dates set for such amounts to
become due and payable expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates.
Section 9.5 Notation on or Exchange of Notes
69
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.6 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article IX if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Company may not sign an amendment or supplemental Indenture
until the Board of Directors approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive and (subject to Section 7.1)
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
Section 9.7 Holders of notes to vote as a single class
For all purposes under this Indenture, the Holders of the
Series A Notes and the Holders of the Series B Notes shall vote together as a
single class, unless otherwise required by law.
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by the TIA, the imposed duties shall
control.
Section 10.2 Notices
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested),
telecopier (promptly confirmed in writing) or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company:
70
Ceridian Corporation
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (612)
Attention: Chief Financial Officer
If to the Trustee:
The Bank of New York
000 Xxxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications;
PROVIDED, that until such time, all notices under this Indenture to the
Trustee shall be sent to both of the Trustee's addresses set forth above.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also
be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3 Communication by Holders of Notes with Other Holders of Notes
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the
71
Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements
set forth in Section 10.5 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 10.5 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied.
Section 10.5 Statements Required in Certificate or Opinion
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, 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 satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied; PROVIDED, HOWEVER,
that with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificate of public officials.
Section 10.6 Rules by Trustee and Agents
72
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 10.7 No Personal Liability of Directors, Officers, Employees and
Stockholders
No past, present or future director, officer, employee,
incorporator or stockholder (direct or indirect) of the Company (or any such
successor entity), as such, shall have any liability for any Obligations of
the Company under the Notes or this Indenture or for any claim based on, in
respect of, or by reason of, such Obligations or their creation, except in
their capacity as an obligor of the Notes in accordance with this Indenture.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 10.8 Governing Law
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE
327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES.
The Company appoints The Bank of New York as its authorized
agent upon which process may be served in any action or proceeding arising
out of or based upon the Indenture or the Notes which may be instituted in
any federal or state court having subject matter jurisdiction in the Borough
of Manhattan, The City of New York, New York and will irrevocably submit to
the jurisdiction of such courts in any such action or proceeding.
Section 10.9 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
Section 10.10 Successors
All agreements of the Company in this Indenture and the Notes
shall bind their successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 10.11 Severability
73
In case any one or more of the provisions of this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 10.12 Counterpart Originals
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 10.13 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
[SIGNATURES ON FOLLOWING PAGE]
74
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture as
of the date first written above.
THE COMPANY:
CERIDIAN CORPORATION
By: /s/J. R. Xxxxxxxx
-----------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
THE TRUSTEE:
THE BANK OF NEW YORK
By: /s/Xxxxxxx Xxxxxxx
------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Exhibit A
[FORM OF NOTE]
CERIDIAN CORPORATION
7.25% [SERIES A] [SERIES B](1) SENIOR NOTE
DUE 2004
CUSIP: 00000XXX0
No. $_______________
Ceridian Corporation, a Delaware corporation (hereinafter called the
"Company" which term includes any successors under this Indenture hereinafter
referred to), for value received, hereby promises to pay to __________, or
registered assigns, the principal sum of __________ Dollars, on June 1, 2004.
Interest Payment Dates: June 1 and December 1; commencing December 1,
1999.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Note on the reverse
side, which will, for all purposes, have the same effect as if set forth at
this place.
-------------------
(1) Series A should be replaced with Series B in the Exchange Notes.
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CERIDIAN CORPORATION
a Delaware corporation
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK
By: ____________________________
Authorized Signatory
Dated: June , 1999
(Back of Note)
7.25% [Series A] [Series B](2) Senior Notes due 2004
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.](3)
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY 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 MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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
-------------------
(2) Series A should be replaced with Series B in the Exchange Notes.
(3) To be included only on Global Notes deposited with DTC as Depositary.
A-3
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](4)
-------------------
(3) To be included only on Global Notes deposited with DTC as Depositary.
A-4
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE 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.](5)
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (D)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), AS LONG AS THE REGISTRAR RECEIVES A CERTIFICATION OF THE TRANSFEROR
AND AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
-------------------
(5) To be included only on Reg S Temporary Global Notes.
A-5
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HERBY OF THE RESALE
RESTRICTION SET FORTH IN (A) ABOVE.]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Ceridian Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
7.25% per annum from June 10, 1999 until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 2(e) of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages, if any, semi-annually on June 1 and December 1 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the Issue Date; PROVIDED that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a Record Date
(defined below) referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; PROVIDED, FURTHER, that the first Interest Payment Date shall be December
1, 1999] The Company shall pay interest (including Accrued Bankruptcy Interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at the rate then in effect; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any, (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the May 15 or
November 15 next preceding the Interest Payment Date (each a "Record Date"),
even if such Notes are cancelled after such Record Date and on or before such
Interest Payment Date, and as provided in Section 2.12 of the Indenture (as
defined below) with respect to defaulted interest. The Notes will be payable as
to principal, premium, interest and Liquidated Damages, if any, at the office or
agency of the Company maintained within the City and State of New York for such
purpose, or, at the option of the Company, payment of
A-6
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and PROVIDED
that payment by wire transfer of immediately available funds to an account
within the United States will be required with respect to principal of and
interest, premium and Liquidated Damages, if any, on all Global Notes. Such
payment shall be 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.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of June 10, 1999 ("Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms.
5. OPTIONAL REDEMPTION.
(a) The Company shall have the right to redeem the Notes, in
whole or in part, at any time and from time to time, upon not less than 30 nor
more than 60 days prior notice mailed by first class mail to each Holder at its
last registered address, at a redemption price equal to the sum of (1) 100% of
the principal amount of the Notes being redeemed, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the redemption date, and (2)
the Make-Whole Amount, if any, with respect to such Notes.
(b) Notice of redemption will be mailed by first class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on Notes
or portions thereof called for redemption unless the Company defaults in such
payments due on the redemption date.
A-7
6. MANDATORY REDEMPTION. The Company shall not be required to make
mandatory redemption payments with respect to the Notes. The Notes shall not
have the benefit of any sinking fund.
7. OFFERS TO PURCHASE.
If the merger of Spring Acquisition Corp., a Florida corporation
and a wholly-owned subsidiary of the Company into ABR has not been consummated
on or before December 31, 1999 on terms substantially similar to those contained
in the ABR Merger Agreement, except for such changes therein as would not
materially adversely affect the Holders of the Notes (the "ABR Event"), each
Holder of Notes will have the right (the "Repurchase Right"), at such holder's
option, subject to the terms and conditions of the Indenture, to require the
Company to repurchase all of such Holder's Notes, or any portion thereof which
equals $1,000 or any integral multiple thereof, on the date (the "Repurchase
Date") fixed by the Company that is not less than 45 days nor more than 75 days
after the date of the Company Notice (as defined) at a price equal to 100% of
the principal amount of the Notes validly tendered and not withdrawn, plus
accrued and unpaid interest, if any, to the Repurchase Date (the "Repurchase
Price").
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before
the day of mailing of a notice of redemption of the Notes to be redeemed or
during the period between a Record Date and the corresponding Interest Payment
Date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the
A-8
Holders of at least a majority in principal amount of the then outstanding
Notes, and most existing Defaults or compliance with most provisions of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
materially adversely affect the rights under the Indenture of any such Holder,
to comply with the provisions of the Depositary, Euroclear or Cedel or the
Trustee with respect to the provisions of the Indenture or the Notes relating to
transfers and exchanges of Notes or beneficial interests therein, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA.
11. DEFAULTS AND REMEDIES. The Indenture provides that each of the
following constitutes an Event of Default: (a) the failure by the Company to pay
any installment of interest (or Liquidated Damages, if any) on the Notes as and
when the same becomes due and payable and the continuance of any such failure
for 30 days; (b) the failure by the Company or any Subsidiary of the Company to
pay all or any part of the principal, or premium, if any, on the Notes when and
as the same becomes due and payable at maturity, redemption, by acceleration or
otherwise; (c) failure by the Company or any Subsidiary of the Company to
perform any other covenant in this Indenture, continued for 30 days after notice
from the Trustee or Holders of at least 25% in principal amount of the Notes
then outstanding; (d) (x) the Company or any of its Subsidiaries fails to pay
any of the Company's Indebtedness under one or more agreements or instruments
evidencing an aggregate principal amount of Indebtedness equal to at least $15
million (or its equivalent in any other currency or currencies) as and when that
Indebtedness becomes due and payable, after the expiration of any applicable
grace period, or (y) any other event occurs which, under one or more agreements
or instruments evidencing the Company's Indebtedness of or that of any
Subsidiary, obligates the Company or its Subsidiary to pay an aggregate
principal amount of Indebtedness equal to at least $15 million (or its
equivalent in any other currency or currencies) prior to the date on which it
otherwise would have become due and payable; (e) a court having jurisdiction
enters a decree or order for (A) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
A-9
Bankruptcy Law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any Significant Subsidiary or for all or substantially all of
the property and assets of the Company or any Significant Subsidiary or (C)
the windng up or liquidation of the affairs of the Company or any Significant
Subsidiary and, in each case, such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or (f) the Company or any
Significant Subsidiary (A) commences a voluntary case under any applicable
Bankruptcy Law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B) consents to
the appointment of or taking possession by a receiver, liquidator, custodian,
trustee, sequestrator or similar official of the Company or any Significant
Subsidiary or for all or substantially all of the property and assets of the
Company or any Significant Subsidiary or (C) effects any general assignment
for the benefit of creditors.
12. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
13. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder (direct or indirect) of the
Company (or any such successor entity), as such, shall have any liability for
any Obligations of the Company under the Notes, or the Indenture or for any
claim based on, in respect of, or by reason of, such Obligations or their
creation, except in their capacity as an obligor of the Notes in accordance with
the Indenture. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
14. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A-10
16. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES.(6) In
addition to the rights provided to Holders of Notes under the Indenture,
Holders of Transferred Restricted Notes shall have all the rights set forth
in the Registration Rights Agreement dated as of the date of the Indenture,
among the Company and the Initial Purchasers.
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon, and any such redemption shall not
be affected by any defect in or omission of such numbers.
18. GOVERNING LAW. THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND RULE 327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Ceridian Corporation
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-1640
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
--------------------
(6) To be included only on Transfer Restricted Notes.
A-11
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
-----------------------
Your Signature:
-----------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*
-------------------------------------------------------------------------------
*NOTICE: The Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.8 of the Indenture, check the box below:
/ / Section 4.8
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.8 of the Indenture, state the amount you elect to
have purchased (in denominations of $1,000 only, except if you have elected to
have all of your Notes purchased): $___________
Date: Your Signature:
------------------------ -------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
------------
Signature Guarantee*
-------------------------------------------------------------------------------
*NOTICE: The Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
A-13
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE (7)
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NOTE FOR AN INTEREST IN
ANOTHER GLOBAL NOTES OR FOR A DEFINITIVE NOTE, OR EXCHANGES OF A PART OF ANOTHER
GLOBAL NOTE OR DEFINITIVE NOTE FOR AN INTEREST IN THIS GLOBAL NOTE, HAVE BEEN
MADE:
Amount of Amount of Signature
Date of decrease Increase Principal of authorized
Exchange in Principal in Principal Amount of this signatory
-------- Amount of this Amount of this Global of Trustee or
Global Note Global Note Note following Note Custodian
-------------- -------------- such --------------
decrease (or
increase)
--------------
--------------------
(7) This should be included only if the Note is issued in global form
A-14
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Ceridian Corporation
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-1640
Attention: Chief Financial Officer
The Bank of New York
000 Xxxxxxx, Xxxxx 00X
Xxx Xxxx, XX 10286
Attention: Corporate Trust Trustee Administration
Re: 7.25% Senior Notes due 2004
Dear Sirs:
Reference is hereby made to the Indenture, dated as of June 10, 1999 (the
"Indenture"), between Ceridian Corporation, as issuer (the "Company") and The
Bank of New York, 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 DEFINITIVE 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 Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive 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
B-1
Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
/2./ CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S GLOBAL NOTE OR A DEFINITIVE 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 Distribution
Compliance 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) and the
interest transferred will be held immediately thereafter through Euroclear or
Cedel. Upon consummation of the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.
/3./ CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A DEFINITIVE 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 beneficial
interests in Restricted Global Notes and Restricted Definitive 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
/ / (c) Such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with
the prospectus delivery
B-2
requirements of the Securities Act; or
/ / (d) such Transfer is being effected to an Institutional 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 it
has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests
in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in a form
of Exhibit D 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 and provided to the Company, which
has confirmed its acceptability), 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 Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the
Definitive 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 DEFINITIVE 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 Definitive 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 Definitive Notes and in
the Indenture and the Securities Act.
/ / (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 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
B-3
Definitive 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 Definitive Notes and in the
Indenture and the Securities Act.
/ / (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 Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the
Indenture.
B-4
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated:
--------------------------------- ----------------------------
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
B-5
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 ), or
-----------
/ / (b) a Restricted Definitive 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 ), or
----------
/ / (iii) Unrestricted Global Note (CUSIP ); or
----------
/ / (b) a Restricted Definitive Note; or
/ / (c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-6
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Ceridian Corporation
0000 00xx Xxxxxx xxxxx
Xxxxxxxxxxx, XX 00000-1640
Attention: Chief Financial Officer
The Bank of New York
000 Xxxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Trustee Administration
Re: 7.25% Senior Notes due 2004
Dear Sirs:
Reference is hereby made to the Indenture, dated as of June
10, 1999 (the "Indenture"), between Ceridian Corporation, as issuer (the
"Company") and The Bank of New York, 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 DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE 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 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 compliance with any applicable blue sky
C-1
securities laws of any State of the United States.
/ / (b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Definitive 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 Definitive 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 DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Owner's Exchange of a Restricted Definitive 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
Definitive 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 DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's
Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive 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 Definitive 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 Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any State of the United
States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
/ / (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of
C-2
the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive 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 Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.
/ / (b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with
the Exchange of the Owner's Restricted Definitive 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) the
beneficial interest is being acquired for the Owner's own account
without transfer and (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, 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.
C-3
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:
-----------------------
C-4
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Ceridian Corporation
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-1640
Attention: Chief Financial Officer
The Bank of New York
000 Xxxxxxx, Xxxxx 00X
Xxx Xxxx, XX 10286
Attention: Corporate Trust Trustee Administration
Re: 7.25% Senior Notes due 2004
Dear Sirs:
Reference is hereby made to the Indenture, dated as of June
10, 1999 (the "Indenture"), between Ceridian Corporation, as issuer (the
"Company") and The Bank of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of: (a) a beneficial interest in a Global
Note, or (b) a Definitive Note, we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by,
and not to resell, pledge or otherwise transfer the Notes or any
interest therein except in compliance with, such restrictions and
conditions and the United States Securities Act of 1933, as amended (the
"Securities Act").
2. We understand that the offer and sale of the Notes have
not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell the Notes or any interest therein, we will do so only (A) to
the Company or any of its respective subsidiaries, (B) in accordance
with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or
has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the
D-1
form of this letter and, if the proposed transfer is in respect of an
aggregate principal amount of Notes of less than $250,000, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect that
such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144 under 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 under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note
from us in a transaction meeting the requirements of clauses (A) through
(F) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and
the Company such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand
that the Notes purchased by us will bear a legend to the foregoing
effect. We further understand that any subsequent transfer by us of the
Notes or beneficial interest therein acquired by us must be effected
through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting
are each able to bear the economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of
which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
D-2
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Dated:
------------------------------------ --------------------------
[Insert Name of Accredited Investor]
By:
-----------------------------
Name:
Title:
D-3
