EXHIBIT 99.2
EXECUTION COPY
________________________________________________________________________
INDENTURE
DATED AS OF DECEMBER 30, 1999
BETWEEN
VESTA INSURANCE GROUP, INC.
AND
REGIONS BANK, AS TRUSTEE
$44,082,000
12.5% SENIOR NOTES DUE 2005
________________________________________________________________________
CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
----------- -------
Sections 310(a)(1) ............................................ 7.10
(a)(2) ............................................ 7.10
(a)(3) ............................................ N.A.
(a)(4) ............................................ N.A.
(a)(5) ......................................7.08, 7.10.
(b) ...................................7.08; 7.10; 10.02
(c) ............................................... N.A.
Sections 311(a) ............................................... 7.11
(b) ............................................... 7.11
(c) ............................................... N.A.
Sections 312(a) ............................................... 2.05
(b) .............................................. 10.03
(c) .............................................. 10.03
Sections 313(a) ............................................... 7.06
(b)(1) ............................................ N.A.
(b)(2) ............................................ 7.06
(c) ........................................ 7.06; 10.02
(d) ............................................... 7.06
Section 314(a) .................................. 4.09; 4.11; 10.02
(b) ............................................... N.A.
(c)(1) ........................................... 10.04
(c)(2) ........................................... 10.04
(c)(3) ............................................ N.A.
(d) ............................................... N.A.
(e) .............................................. 10.05
(f) ............................................... N.A.
Sections 315(a) ........................................... 7.01(b)
(b) ........................................ 7.05; 10.02
(c) ............................................ 7.01(a)
(d) ............................................ 7.01(c)
(e) ............................................... 6.11
Sections 316(a)(last sentence) ................................ 2.09
(a)(1)(A) ......................................... 6.05
(a)(1)(B) ......................................... 6.04
(a)(2) ............................................ N.A.
(b) ............................................... 6.07
(c) ............................................... 9.04
Sections 317(a)(1) ............................................ 6.08
(a)(2) ............................................ 6.09
(b) ............................................... 2.04
Sections 318(a) .............................................. 10.01
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE........... 1
SECTION 1.01. DEFINITIONS...................................... 1
SECTION 1.03. RULES OF CONSTRUCTION............................ 17
ARTICLE TWO
THE SECURITIES................. 17
SECTION 2.01. FORM AND DATING.................................. 17
SECTION 2.02. EXECUTION AND AUTHENTICATION..................... 18
SECTION 2.03. REGISTRAR AND PAYING AGENT....................... 18
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST............. 19
SECTION 2.05. HOLDER LISTS..................................... 19
SECTION 2.06. TRANSFER AND EXCHANGE............................ 20
SECTION 2.07. REPLACEMENT SECURITIES........................... 20
SECTION 2.08. OUTSTANDING SECURITIES........................... 21
SECTION 2.09. TREASURY SECURITIES.............................. 21
SECTION 2.10. TEMPORARY SECURITIES............................. 21
SECTION 2.11. CANCELLATION..................................... 22
SECTION 2.12. DEFAULTED INTEREST............................... 22
SECTION 2.13. CUSIP NUMBER..................................... 22
SECTION 2.14. DEPOSIT OF MONEYS................................ 23
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES...... 23
SECTION 2.16. REGISTRATION OF TRANSFERS AND EXCHANGES.......... 24
SECTION 2.17. INTEREST RATE ADJUSTMENT......................... 28
ARTICLE THREE
REDEMPTION.................... 28
SECTION 3.01. NOTICES TO TRUSTEE............................... 28
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED........... 28
SECTION 3.03. NOTICE OF REDEMPTION............................. 28
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION................... 29
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE...................... 29
SECTION 3.06. SECURITIES REDEEMED IN PART...................... 30
SECTION 3.07. OPTIONAL COMPANY REDEMPTION...................... 30
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ARTICLE FOUR
COVENANTS..................... 30
SECTION 4.01. PAYMENT OF SECURITIES............................ 30
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.................. 31
SECTION 4.03. TRANSACTIONS WITH AFFILIATES..................... 31
SECTION 4.04. LIMITATION ON INDEBTEDNESS....................... 32
SECTION 4.05. LIMITATION ON INVESTMENT COMPANY STATUS.......... 33
SECTION 4.06. LIMITATION ON ASSET SALES........................ 33
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS................ 35
SECTION 4.08. NOTICE OF DEFAULTS............................... 38
SECTION 4.09. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES............. 38
SECTION 4.10. STATEMENT AS TO COMPLIANCE....................... 38
SECTION 4.11. CORPORATE EXISTENCE.............................. 39
SECTION 4.12 LlMITATION ON DISPOSITION OF STOCK OF
SUBSIDIARIES.................................... 39
SECTION 4.13. LIMITATION ON LIENS.............................. 39
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL......... 40
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION......... 41
SECTION 5.01. MERGERS, SALE OF ASSETS, ETC..................... 41
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED................ 42
ARTICLE SIX
DEFAULT AND REMEDIES.............. 43
SECTION 6.01. EVENTS OF DEFAULT................................ 43
SECTION 6.02. ACCELERATION..................................... 44
SECTION 6.03. OTHER REMEDIES................................... 44
SECTION 6.04. WAIVER OF PAST DEFAULT........................... 45
SECTION 6.05. CONTROL BY MAJORITY.............................. 45
SECTION 6.06. LIMITATION ON SUITS.............................. 46
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT............. 46
SECTION 6.08. COLLECTION SUIT BY TRUSTEE....................... 46
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM................. 47
SECTION 6.10. PRIORITIES....................................... 47
SECTION 6.11. UNDERTAKING FOR COSTS............................ 47
ARTICLE SEVEN
TRUSTEE...................... 48
SECTION 7.01. DUTIES OF TRUSTEE................................ 48
SECTION 7.02. RIGHTS OF TRUSTEE................................ 49
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE..................... 50
SECTION 7.04. TRUSTEE'S DISCLAIMER............................. 51
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SECTION 7.05. NOTICE OF DEFAULTS.................................. 51
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS....................... 51
SECTION 7.07. COMPENSATION AND INDEMNITY.......................... 51
SECTION 7.08. REPLACEMENT OF TRUSTEE.............................. 53
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.................... 54
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION....................... 54
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE COMPANY........................................ 54
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE........ 54
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS............ 54
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE............ 55
SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT
DEFEASANCE......................................... 56
SECTION 8.04. APPLICATION OF TRUST MONEY; TRUSTEE
ACKNOWLEDGMENT AND INDEMNITY....................... 57
SECTION 8.05. REPAYMENT TO COMPANY................................ 58
SECTION 8.06. REINSTATEMENT....................................... 58
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS........ 58
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.......................... 58
SECTION 9.02. WITH CONSENT OF HOLDERS............................. 59
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT................. 60
SECTION 9.04. RECORD DATE FOR CONSENTS AND EFFECT OF
CONSENTS....................................... 60
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES............... 61
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC..................... 61
ARTICLE TEN
MISCELLANEOUS..................... 61
SECTION 10.01. TRUST INDENTURE ACT CONTROLS........................ 61
SECTION 10.02. NOTICES............................................. 62
SECTION 10.03. COMMUNICATIONS BY HOLDERS WITH OTHER
HOLDERS........................................ 63
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT...................................... 63
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE.................. 63
SECTION 10.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR........... 64
SECTION 10.07. GOVERNING LAW....................................... 64
SECTION 10.08. NO RECOURSE AGAINST OTHERS.......................... 64
SECTION 10.09. SUCCESSORS.......................................... 64
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SECTION 10.10. COUNTERPART ORIGINALS.......................... 64
SECTION 10.11. SEVERABILITY................................... 64
SECTION 10.12. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS................................ 64
SECTION 10.13. LEGAL HOLIDAYS................................. 65
SIGNATURES......................................................... S-1
EXHIBIT A Form of Security........................................ A-1
EXHIBIT B Form of Legend for Global Securities.................... B-1
EXHIBIT C Form of Transfer Certificate............................ C-1
EXHIBIT D Form of Transferee Letter of Representations............ D-1
EXHIBIT E Form of Transfer Certificate for Regulation S Transfers. E-1
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INDENTURE dated as of December 30, 1999, between VESTA INSURANCE GROUP,
INC., a Delaware corporation (the "COMPANY"), and Regions Bank, an Alabama
banking corporation, as trustee (the "TRUSTEE").
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified
Person, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or into or
becoming a Restricted Subsidiary of such specified Person, and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"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 purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to
any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"AFFILIATE TRANSACTION" has the meaning provided in Section 4.03.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"ASSET SALE" means any direct or indirect sale, conveyance, transfer, lease
(that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale-leaseback
transaction) to any Person other than the Company or a Wholly-Owned
Restricted Subsidiary of the Company, in one transaction or a series of
related transactions, of (i) any Equity Interest of any Restricted
Subsidiary of the Company; (ii) any license, franchise or other
authorization of the Company or any Restricted Subsidiary of the Company;
or (iii) any assets of the Company or any Restricted Subsidiary of the
Company other than investment securities in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall
not include (a) any transaction consummated in compliance with Section
5.01; PROVIDED, HOWEVER, that any transaction consummated in compliance
with Section 5.01 involving a sale, conveyance, assignment, transfer, lease
or other disposal of less than all of the properties or assets of the
Company shall be deemed to be an Asset Sale with respect to the properties
or assets of the Company and the Restricted
Subsidiaries of the Company that are not so sold, conveyed, assigned,
transferred, leased or otherwise disposed of in such transaction; (b) sales
of property or equipment that has become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company
or any Restricted Subsidiary of the Company, as the case may be; (c) any
transaction consummated in compliance with Section 4.07; and (d) a bona-
fide pledge, or transfer pursuant to a pledge of assets, which pledge is a
Permitted Lien. In addition, solely for purposes of Section 4.06, any sale,
conveyance, transfer, lease or other disposition of any property or asset,
whether in one transaction or a series of related transactions, involving
assets with a Fair Market Value not in excess of $5 million in any fiscal
year shall be deemed not to be an Asset Sale.
"BANKRUPTCY LAW" has the meaning provided in Section 6.01.
"BOARD OF DIRECTORS" means the Board of Directors or other governing body
charged with the ultimate management of any Person, or any duly authorized
committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person or a duly authorized
committee of such Board of Directors.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or Chicago, Illinois are
not required to be open.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, common or preferred
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of common or preferred stock, (iii) in the case of a
partnership or limited liability company, partnership or membership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means: (a) U.S. dollars; (b) securities issued or
directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition; (c) certificates of deposit and
Eurodollar time deposits with maturities of six months or less from the
date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess of $500 million; (d)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c) above
entered into with any
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financial institution meeting the qualifications specified in clause (c)
above; (e) commercial paper rated P-1, A-1 or the equivalent thereof by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services,
respectively, and in each case maturing within six months after the date of
acquisition; and (f) money market funds, the portfolios of which are
limited to investments described in clauses (a) through (c) above.
"CHANGE OF CONTROL" means the occurrence of any of the following events
(whether or not approved by the Board of Directors of the Company): (i) any
Person (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), is or becomes the "beneficial owner" or "beneficial owners"
(as defined in Rule 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all shares that
any such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, upon the happening of an
event or otherwise), directly or indirectly, of more than 51% of the total
voting power of the then outstanding Voting Stock of the Company; (ii) the
Company consolidates with, or merges with or into, another Person (other
than the Company or a Wholly-Owned Restricted Subsidiary of the Company) or
the Company or its Restricted Subsidiaries sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of the assets of the
Company and its Restricted Subsidiaries (determined on a consolidated
basis) to any Person (other than the Company or a Wholly-Owned Restricted
Subsidiary of the Company), other than any such transaction where
immediately after such transaction the Person or Persons that "beneficially
owned" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), immediately
prior to such transaction, directly or indirectly, a majority of the then
outstanding Voting Stock of the Company "beneficially own" (as so
determined), directly or indirectly, a majority of the total voting power
of the then outstanding Voting Stock of the surviving or transferee Person;
(iii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors
or whose nomination for election by the shareholders of the Company was
approved by a vote of a majority of the directors of the Company then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the
Company then in office; or (iv) adoption of a plan of liquidation or
dissolution.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor.
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"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, a Vice President or its Treasurer,
and by its Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"CONSOLIDATED INDEBTEDNESS" means, with respect to any Person as of any
date of determination, the sum, without duplication, of (i) the total
amount of Indebtedness of such Person and its Restricted Subsidiaries, plus
(ii) the total amount of Indebtedness of any other Person, to the extent
that such Indebtedness has been Guaranteed by the referent Person or one or
more of its Restricted Subsidiaries, plus (iii) the aggregate liquidation
value of all Disqualified Stock of such Person and all preferred stock of
Restricted Subsidiaries of such Person (other than, in the case of the
Company, preferred stock of a Restricted Subsidiary of the Company held by
the Company), in each case, determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, with respect to any Person, as of any
date of determination, the ratio of (i) the Consolidated Indebtedness of
such Person as of such date excluding, however, all Hedging Obligations
that constitute Permitted Debt to (ii) the Consolidated Net Worth of such
Person as of such date.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted
Subsidiaries (for such period, on a consolidated basis, determined in
accordance with GAAP); PROVIDED that (i) the Net Income (but not loss) of
any Person that is not a Restricted Subsidiary of such Person or that is
accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
referent Person or a Wholly-Owned Restricted Subsidiary thereof, (ii) the
Net Income of any Restricted Subsidiary of such Person shall be excluded to
the extent that the declaration or payment of dividends, similar
distributions or other payments (such as management fees or tax sharing
payments) by that Restricted Subsidiary of an amount equal to that Net
Income is not, at the date of determination, permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders,
(iii) the Net Income (but not loss) of Unrestricted Subsidiaries (iv) the
Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded, and (v)
the cumulative effect of a change in accounting principles shall be
excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date plus (ii) the
----
respective amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock, but only to the extent of
any cash received by such Person upon issuance of such preferred stock,
less
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(x) all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern business
made within 12 months after the acquisition of such business) subsequent to
the Issue Date in the book value of any asset owned by such Person or a
consolidated Restricted Subsidiary of such Person, (y) all investments as
of such date in unconsolidated Restricted Subsidiaries and in Persons that
are not Restricted Subsidiaries, and (z) all unamortized debt discount and
expense and unamortized deferred financing charges as of such date, all of
the foregoing determined in accordance with GAAP.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" means the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located in Birmingham, Alabama.
"CUSTODIAN" has the meaning provided in Section 6.01.
"DEFAULT" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"DEPOSITORY" means, with respect to the Securities issued in the form of
one or more Global Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing
agency registered under the Exchange Act.
"DISQUALIFIED STOCK" means any Capital Stock that, either (A) by its terms
(or by the terms of any security into which it is convertible or for which
it is exchangeable), matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the
Holder thereof, in whole or in part, on or prior to the date that is 91
days after the date on which the Securities mature or (B) is designated by
the Company (in a Board Resolution of the Company delivered to the Trustee)
as Disqualified Stock; provided however, that Disqualified Stock shall not
include Capital Stock that is redeemable upon occurrence of a contingency
such as a tax event.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"EXPIRATION DATE" has the meaning set forth in the definition of "OFFER TO
PURCHASE."
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"FAIR MARKET VALUE" means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction; PROVIDED, HOWEVER, that the Fair
Market Value of any such asset or assets shall be determined conclusively
by the Board of Directors of the Company acting in good faith, and shall be
evidenced by Board Resolutions of the Company delivered to the Trustee.
"FINAL MATURITY DATE" means December 30, 2005.
"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 in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect on the Issue Date
and consistently applied.
"GLOBAL SECURITIES" means one or more 144A Securities, Regulation S
Securities or IAI Securities issued in global form.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit
and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of
such Person under (i) interest rate or currency swap agreements, interest
rate cap agreements and interest rate or currency collar agreements and
related agreements and (ii) other agreements or arrangements designed to
protect such Person against fluctuations in interest rates, currencies and
commodities in the ordinary course of business.
"HOLDERS" means the registered holders of the Securities.
"IAI SECURITY" means a permanent security in registered form representing
a Security transferred after the Issue Date to an Institutional Accredited
Investor, or, in the case of an IAI Security issued in global form, the
aggregate principal amount of Securities transferred after the Issue Date
to Institutional Accredited Investors.
"INCUR" has the meaning set forth in Section 4.04.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or banker's acceptances or
representing Capital Lease Obligations or the balance
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deferred and unpaid of the purchase price of any property or representing
any Hedging Obligations, except any such balance that constitutes an
accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as
well as all indebtedness of others secured by a Lien on any asset of such
Person (whether or not such indebtedness is assumed by such Person and the
value thereof being the lesser of the amount of such indebtedness so
secured and the Fair Market Value of such asset that has a Lien placed upon
it) and, to the extent not otherwise included, the Guarantee by such Person
of any indebtedness of any other Person. The amount of any Indebtedness
outstanding as of any date shall be (i) the accreted value thereof, in the
case of any Indebtedness that does not require current payments of
interest, and (ii) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness. With respect to the Company, the term "Indebtedness" shall
include the principal balance of the Company's 8.525% Junior Subordinated
Deferrable Interest Debentures, together with any accrued interest thereon
or costs associated therewith.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"INTEREST" means, with respect to the Securities, the sum of any cash
interest accrued on the principal thereof and, if permitted by law, the
interest thereon, at the rate of 12.5%, as provided in the form of Security
attached as Exhibit A hereto.
"INTEREST PAYMENT DATE" means each semiannual interest payment date on
January 15th and July 15th of each year, commencing on July 15, 2000.
"INTEREST RECORD DATE" for the interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the January
1st or July 1st (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared
in accordance with GAAP.
"ISSUE DATE" means the date of initial issuance of the Securities.
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"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"NET CASH PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of Indebtedness secured by
a Lien on the asset or assets that were the subject of such Asset Sale and
any reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but
not loss), together with any related provision for taxes on such gain (but
not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback
transactions) or (b) the disposition of any securities by such Person or
any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries and (ii)
any extraordinary or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but
not loss).
"OBLIGATIONS" means any principal, interest (including, without limitation,
post-petition interest), penalties, fees, indemnifications, reimbursement
obligations, damages and other liabilities payable under the documentation
governing any Indebtedness.
"OFFER" has the meaning set forth in the definition of "OFFER TO PURCHASE."
"OFFER TO PURCHASE" means a written offer (the "OFFER") sent by or on
behalf of the Company by first-class mail, postage prepaid, to each Holder
at his address appearing in the register for the Securities on the date of
the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by
applicable law, the Offer shall specify an expiration date (the "EXPIRATION
DATE") of the Offer to Purchase, which shall be not less than 20 Business
Days nor more than 60 days after the date of such Offer, and a settlement
date (the "PURCHASE DATE") for purchase of Securities to occur no later
than five Business Days after the Expiration Date. The Company shall notify
the
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Trustee at least 15 Business Days (or such shorter period as is acceptable
to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by
the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain all the information
required by applicable law to be included therein. The Offer shall also
contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to Purchase
(which at a minimum will include (i) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contained in the documents required to
be filed with the Trustee pursuant to this Indenture (which requirements
may be satisfied by delivery of such documents together with the Offer),
(ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred
to in clause (i) (including a description of the events requiring the
Company to make the Offer to Purchase), (iii) if applicable, appropriate
pro forma financial information concerning the Offer to Purchase and the
events requiring the Company to make the Offer to Purchase and (iv) any
other information required by applicable law to be included therein). The
Offer shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Offer to Purchase. The Offer
shall also state: (1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made; (2) the Expiration Date and the Purchase
Date; (3) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to this Section of this Indenture requiring the Offer
to Purchase) (the "PURCHASE AMOUNT"); (4) the purchase price to be paid by
the Company for each $1,000 aggregate principal amount of Securities
accepted for payment (as specified pursuant to this Indenture) (the
"PURCHASE PRICE"); (5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1,000
principal amount; (6) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase; (7) that interest
on any Security not tendered or tendered but not purchased by the Company
pursuant to the Offer to Purchase will continue to accrue; (8) that on the
Purchase Date the Purchase Price will become due and payable upon each
Security being accepted for payment pursuant to the Offer to Purchase and
that interest thereon shall cease to accrue on and after the Purchase Date;
(9) that each Holder electing to tender all or any portion of a Security
pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the close
of business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing); (10) that each Holder will be entitled to withdraw all or any
portion of any Securities tendered by such Holder if the Company (or its
Paying Agent) receives, not later than the close of business on the fifth
Business Day next preceding the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder, the
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principal amount of the Security such Holder tendered, the certificate
number of the Security such Holder tendered and a statement that such
Holder is withdrawing all or a portion of his tender; (11) that (a) if
Securities in an aggregate principal amount less than or equal to the
Purchase Amount are duly tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase all such Securities and (b) if
Securities in an aggregate principal amount in excess of the Purchase
Amount are tendered and not withdrawn pursuant to the Offer to Purchase,
the Company shall purchase Securities having an aggregate principal amount
equal to the Purchase Amount on a PRO RATA basis (with such adjustments as
may be deemed appropriate so that only Securities in denominations of
$1,000 principal amount or integral multiples thereof shall be purchased);
and (12) that in the case of any Holder whose Security is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered. An Offer to Purchase shall
be governed by and effected in accordance with the provisions above
pertaining to any Offer.
"OFFICER" means, with respect to the Company, the Chairman, any Vice
Chairman, the President, any Vice President, the Chief Financial Officer,
the Treasurer or the Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or Assistant Secretary of the Company
complying with Sections 10.04 and 10.05.
"144A SECURITY" means a permanent security in registered form representing
a Security sold in reliance on Rule 144A, or in the case of a 144A Security
issued in global form, the aggregate principal amount of Securities sold in
reliance on Rule 144A.
"OPINION OF COUNSEL" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Truste e.
"PARTICIPANTS" has the meaning provided in Section 2.15.
"PAYING AGENT" has the meaning provided in Section 2.03.
"PERMITTED DEBT" has the meaning provided in Section 4.04.
"PERMITTED INVESTMENTS" means (a) any Investment in the Company or in a
Wholly-Owned Restricted Subsidiary of the Company; (b) any Investment in
Cash Equivalents; (c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such Investment
(i) such Person becomes a Wholly-Owned Restricted Subsidiary of the Company
or (ii) such Person is merged, consolidated or amalgamated with
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or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly-Owned Restricted Subsidiary of the
Company; (d) any Restricted Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.06; (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified
Stock) of the Company; (f) Hedging Obligations of the Company and its
Restricted Subsidiaries entered into in the ordinary course of business;
and (g) other Investments by the Company or any of its Restricted
Subsidiaries in any Person (other than an Affiliate of the Company that is
not also a Restricted Subsidiary of the Company) that do not exceed $10
million in the aggregate at any one time outstanding (measured as of the
date made and without giving effect to subsequent changes in value).
"PERMITTED LIENS" means (i) Liens existing on the Issue Date; (ii) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
PROVIDED that such Liens were in existence prior to the contemplation of
such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or such
Restricted Subsidiary; (iii) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the
Company; PROVIDED that such Liens were in existence prior to the
contemplation of such acquisition; (iv) Liens securing Purchase Money
Indebtedness permitted to be incurred under this Indenture and incurred in
the ordinary course of business; PROVIDED, HOWEVER, that any such Lien may
not extend to any other property owned by the Company or any of its
Restricted Subsidiaries at the time the Lien is incurred, and the
Indebtedness secured by the Lien may not be incurred more than 180 days
after the latter of the acquisition or completion of construction of the
property subject to the Lien; PROVIDED, FURTHER, that the amount of
Indebtedness secured by such Liens do not exceed the Fair Market Value of
the property purchased or constructed with the proceeds of such
Indebtedness; (v) Liens to secure any Permitted Refinancing Indebtedness
incurred to refinance any Indebtedness secured by any Lien referred to in
the foregoing clauses (i) through (iv); PROVIDED, HOWEVER, that such new
Lien shall be limited to all or part of the same property that secured the
original Lien and the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the outstanding principal amount or,
if greater, committed amount of the Indebtedness described under clauses
(i) through (iv), as the case may be, at the time the original Lien became
a Permitted Lien; (vi) Liens in favor of the Company; (vii) Liens incurred
in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company; (viii) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business
(including, without limitation, lessor Liens on leased assets); (ix) Liens
securing Capital Lease Obligations permitted to be incurred under this
Indenture and incurred in the ordinary course of business; (x) Liens for
taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; PROVIDED that any
reserve or other appropriate provision as shall be
-11-
required in conformity with GAAP in existence at such time shall have been
made therefor and (xi) certain Liens consisting of restrictions on the use
of real property which do not materially interfere with the property's use.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness or Disqualified
Stock of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease, redeem or refund other Indebtedness or
Disqualified Stock of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); PROVIDED THAT: (i) the principal
amount (or accreted value, if applicable) or liquidation value of such
Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable) or liquidation value, plus accrued
interest or dividends on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased, redeemed or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date or redemption date, as
the case may be, at least six months later than the final maturity date or
redemption date, as the case may be, of the Securities; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Securities, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the
Securities on terms at least as favorable to the holders of Securities as
those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv)
such Indebtedness or Disqualified Stock is incurred or issued, as the case
may be, either by the Company or by the Restricted Subsidiary who is the
obligor or issuer, as the case may be, on the Indebtedness or Disqualified
Stock being extended, refinanced, renewed, replaced, defeased, redeemed or
refunded.
"PERSON" means an individual, partnership, corporation, limited liability
company, unincorporated organization, trust, joint venture, or a
governmental agency or political subdivision thereof.
"PHYSICAL SECURITIES" means one or more certificated Securities in
registered form.
"PRIVATE PLACEMENT LEGEND" means the legend set forth on the Securities in
the form of EXHIBIT A hereto.
"PURCHASE AMOUNT" has the meaning set forth in the definition of "OFFER TO
PURCHASE."
"PURCHASE DATE" has the meaning set forth in the definition of "OFFER TO
PURCHASE."
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries incurred in the ordinary course of business for the
purpose of financing
-12-
all or any part of the purchase price, or the cost of installation,
construction or improvement, of property or equipment.
"PURCHASE PRICE" has the meaning set forth in the definition of "OFFER TO
PURCHASE."
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" means a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act.
"REDEMPTION DATE," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"REDEMPTION PRICE," when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Security annexed hereto as EXHIBIT A.
"REGISTRAR" has the meaning provided in Section 2.03.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S SECURITY" means a permanent security in registered form
representing a Security sold in reliance on Regulation S under the
Securities Act, or, in the case of a Regulation S Security issued in global
form, the aggregate principal amount of Securities sold in reliance on
Regulation S under the Securities Act.
"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 INVESTMENT" means any Investment other than a Permitted
Investment.
"RESTRICTED PAYMENTS" has the meaning provided in Section 4.07.
"RESTRICTED SECURITY" has the meaning set forth in Rule 144(a)(3) under the
Securities Act; PROVIDED, HOWEVER, that the Trustee shall be entitled to
request and conclusively rely upon an Opinion of Counsel with respect to
whether any Security is a Restricted Security.
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"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
"SECURITIES" means the Company's 12.5% Senior Notes Due 2005, as amended or
supplemented from time to time in accordance with the terms of this
Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary of the Company
that would be a "significant subsidiary" as defined in Article 1, Rule 1-02
of Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the date hereof.
"SPECIFIED SENIOR INDEBTEDNESS" means (i) the Indebtedness of any Person,
whether outstanding on the Issue Date or thereafter incurred, and (ii)
accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to such
Person to the extent post filing interest is allowed in such proceeding) 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
unless, in the case of either clause (i) or (ii), in the instrument
creating or evidencing the same pursuant to which the same is outstanding,
it is provided that such obligations are subordinate in right of payment to
the Securities; PROVIDED, HOWEVER, that Specified Senior Indebtedness shall
not include (1) any obligation of such Person to any Subsidiary of such
Person, (2) any liability for Federal, state, local or other taxes owed or
owing by such Person, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any obligations in
respect of Capital Stock of such Person or (5) that portion of any
Indebtedness which at the time of incurrence is incurred in violation of
this Indenture.
"STATED MATURITY" means with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of
-14-
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more Subsidiaries of such
Person (or any combination thereof).
"SURVIVING PERSON" means the Person formed by or surviving a transaction
permitted by Section 5.01 or the Person to which a sale, assignment,
transfer, lease, or conveyance or other disposition is made in a
transaction permitted by Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-
77bbbb), as amended, as in effect on the date of this Indenture (except as
provided in Section 9.03) until such time as this Indenture is qualified
under the TIA, and thereafter as in effect on the date on which this
Indenture is qualified under the TIA.
"TRUST OFFICER" means any officer within the corporate trust department (or
any successor group of the Trustee) including any vice president, assistant
vice president, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other
officer to whom such trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"TRUSTEE" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions
of this Indenture and thereafter means such successor.
"UNITED STATES GOVERNMENT OBLIGATIONS" means direct non-callable
obligations of the United States of America for the payment of which the
full faith and credit of the United States is pledged.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary: (a) has not at the time of designation, and does not
thereafter, create, incur, assume, guarantee or otherwise become directly
or indirectly liable with respect to any Indebtedness pursuant to which the
lender thereof has recourse to any of the assets of the Company or any of
its Restricted Subsidiaries; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) is a Person with respect
to which neither the Company nor any
-15-
of its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; (d) has not otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or
any of its Restricted Subsidiaries. Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.07;
and (e) does not own, directly or indirectly, a Restricted Subsidiary. If,
at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be
an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under Section
4.04, the Company shall be in default under Section 4.04). The Board of
Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that such designation
shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i)
such Indebtedness is permitted under the Consolidated Leverage Ratio test
or the Interest Charges Coverage Ratio test set forth in the first
paragraph of Section 4.04, and (ii) no Default or Event of Default would be
in existence following such designation.
"UNUTILIZED NET CASH PROCEEDS" has the meaning provided in Section 4.06.
"VOTING STOCK" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly-Owned
Restricted Subsidiaries of such Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
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"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" means the Company or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. 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 generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(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.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities and the Trustee's certificate of authentication thereof
shall be substantially in the form of EXHIBIT A hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and any notation,
-17-
legend or endorsement on them. Each Security shall be dated the date of its
issuance and shall show the date of its authentication.
The terms and provisions contained in the Securities annexed hereto as
EXHIBITS A and B shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, 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.
Securities offered and sold in reliance on Rule 144A and Securities offered
and sold in reliance on Regulation S shall be issued initially as Physical
Securities substantially in the form set forth in EXHIBIT A hereto and
authenticated by the Trustee as hereinafter provided. Securities in global form
shall bear the legend set forth in EXHIBIT B hereto. The aggregate principal
amount of the Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) of the Company shall attest to, the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless. A Security
shall not be valid until an authorized signatory of the Trustee manually signs
the certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate the Securities for original issue in an
aggregate principal amount not to exceed $44,082,000 upon a written order of the
Company in the form of an Officers' Certificate. Such written order shall
specify the amount of Securities to be authenticated and the date on which the
Securities are to be authenticated whether the Securities are to be issued as
Physical Securities or Global Securities and such other information as the
Trustee may reasonably request. The Securities issued under this Indenture shall
vote and consent together on all matters (as to which any of such Securities may
vote or consent) as one class and no series of Securities will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent to deal with the Company and Affiliates of the
Company.
-18-
The Securities shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where (a) Securities may be
presented or surrendered for registration of transfer or for exchange (the
"REGISTRAR"), (b) Securities may be presented or surrendered for payment (the
"PAYING AGENT") and (c) notices and demands in respect of the Securities and
this Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company, upon notice to the
Trustee, may appoint one or more co-Registrars and one or more additional Paying
Agents. The term "PAYING AGENT" includes any additional Paying Agent. Except as
provided herein, the Company may act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of the
TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent, or
fails to give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying Agent
until such time as the Trustee has resigned or a successor has been appointed.
SECTION 2.04. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest on, the Securities, and shall notify the Trustee of any Default
by the Company in making any such payment. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent (if other than the
Company), the Paying Agent shall have no further liability for such assets. If
the Company or any of their Affiliates acts as Paying Agent, it shall, on or
before each due date of the principal of or interest on the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
SECTION 2.05. HOLDER LISTS.
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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
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee before each Interest Record Date and at such other times as the Trustee
may request in writing a list as of such date and in such form as the Trustee
may reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. TRANSFER AND EXCHANGE.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
PROVIDED, HOWEVER, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made 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 other governmental charge
payable upon exchanges or transfers pursuant to Section 2.02, 2.10, 3.06 or
9.05). The Registrar or co-Registrar shall not be required to register the
transfer or exchange of any Security (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three
hereof, except the unredeemed portion of any Security being redeemed in part.
Prior to the registration of any transfer by a Holder as provided herein,
the Company, the Trustee and any Agent of the Company shall treat the person in
whose name the Security is registered as the owner thereof for all purposes
whether or not the Security shall be overdue, and none of the Company, the
Trustee or any such Agent shall be affected by notice to the contrary. Any
consent, waiver or actions of a Holder shall be binding upon any subsequent
Holders of such Security or a Security received upon transfer. Any Holder of a
beneficial interest in a Global Security shall, by acceptance of such beneficial
interest in a Global Security, agree that transfers of beneficial interests in
such Global Security may be effected only through a book-entry system maintained
by the Depository (or its agent), and that ownership of a beneficial interest in
a Global Security shall be required to be reflected in a book entry.
SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee
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shall authenticate a replacement Security if the Trustee's requirements for
replacement of Securities are met. Unless waived by the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
the Company and the Trustee, to protect the Company, the Trustee and any Agent
from any loss which any of them may suffer if a Security is replaced. The
Company may charge such Holder for their reasonable out-of-pocket expenses in
replacing a Security, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. OUTSTANDING SECURITIES.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those canceled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because the
Company or any Affiliates of the Company holds the Security. If a Security is
replaced pursuant to Section 2.07 (other than a mutilated Security surrendered
for replacement), it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE purchaser.
A mutilated Security ceases to be outstanding upon surrender of such Security
and replacement thereof pursuant to Section 2.07.
If on a Redemption Date, Purchase Date or the Final Maturity Date the
Paying Agent holds money sufficient to pay all of the principal and interest due
on the Securities payable on that date, and is not prohibited from paying such
money to the Holders pursuant to the terms of this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its Affiliates shall be disregarded, except that, for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities that a Trust Officer of
the Trustee actually knows are so owned shall be disregarded.
The Company shall promptly notify the Trustee, in writing, when the Company
or any of its Affiliates repurchases or otherwise acquires Securities, of the
aggregate principal amount of such Securities so repurchased or otherwise
acquired.
SECTION 2.10. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated.
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Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Securities in exchange for temporary
Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel, and at the written direction of the Company,
dispose of and deliver evidence of such disposal of all Securities surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that they have paid
or delivered to the Trustee for cancellation. If the Company shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
The Company shall pay interest on overdue principal from time to time on
demand at the rate of interest then borne by the Securities. The Company shall,
to the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
of interest then borne by the Securities.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day preceding the date
fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid. Notwithstanding the
foregoing, any interest which is paid prior to the expiration of the 30-day
period set forth in Section 6.01(b) shall be paid to Holders as of the Interest
Record Date for the Interest Payment Date for which interest has not been paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Securities will use a "CUSIP" number and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; PROVIDED, HOWEVER, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be
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placed only on the other identification numbers printed on the Securities. The
Company shall promptly notify the Trustee of any changes in CUSIP numbers known
to it.
SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 1:00 p.m. New York City time on each Interest Payment Date,
Redemption Date, Purchase Date and the Final Maturity Date, the Company shall
deposit with the Paying Agent in immediately available funds money sufficient to
make cash payments, if any, due on such Interest Payment Date, Redemption Date,
Purchase Date or Final Maturity Date, as the case may be, in a timely manner
which permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, Redemption Date, Purchase Date or Final Maturity Date, as the case
may be.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
EXHIBIT B. Members of, or participants in, the Depository ("PARTICIPANTS") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Securities may be transferred or
exchanged for Physical Securities in accordance with the rules and procedures of
the Depository and the provisions of Section 2.16; PROVIDED, HOWEVER, that
Physical Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in Global Securities if (i) the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for any Global Security and a successor Depository is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a request from the Depository
to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in the Global
Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
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(d) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (c) of this
Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities and the Trustee is entitled to rely upon
any electronic instructions from beneficial owners to the Holder of any Global
Security.
SECTION 2.16. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) TRANSFER AND EXCHANGE OF PHYSICAL SECURITIES. When Physical Securities
are presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal amount of
Physical Securities of other authorized denominations, the Registrar or co-
Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for
such transactions are met; PROVIDED, HOWEVER, that the Physical Securities
presented or surrendered for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Physical Securities the offer and sale of which have
not been registered under the Securities Act, such Physical Securities
shall be accompanied, in the sole discretion of the Company, by the
following additional information and documents, as applicable:
(A) if such Physical Security is being delivered to the Registrar or co-
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (substantially in
the form of EXHIBIT C hereto); or
(B) if such Physical Security is being transferred to a QIB in accordance
with Rule 144A, a certification to that effect (substantially in the form
of EXHIBIT C hereto); or
(C) if such Physical Security is being transferred to an Institutional
Accredited Investor, delivery of a certification to that effect
(substantially in the form of EXHIBIT C hereto) and a transferee letter of
representation (substantially in the form of EXHIBIT D hereto) and, at the
option of the Company, an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in compliance with the
Securities Act; or
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(D) if such Physical Security is being transferred in reliance on
Regulation S, delivery of a certification to that effect (substantially in
the form of EXHIBIT C hereto) and a transferor certificate for Regulation S
transfers (substantially in the form of EXHIBIT E hereto) and an Opinion of
Counsel reasonably satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(E) if such Physical Security is being transferred in reliance on Rule 144
under the Securities Act, delivery of a certification to that effect
(substantially in the form of EXHIBIT C hereto) and, at the option of the
Company, an Opinion of Counsel reasonably satisfactory to the Company to
the effect that such transfer is in compliance with the Securities Act; or
(F) if such Physical Security is being transferred in reliance on another
exemption from the registration requirements of the Securities Act, a
certification to that effect (substantially in the form of EXHIBIT C
hereto) and, at the option of the Company, an Opinion of Counsel reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A PHYSICAL SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY. A Physical Security the offer and sale of which
has not been registered under the Securities Act may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar of a
Physical Security, duly endorsed or accompanied by appropriate instruments of
transfer together with:
(A) certification, substantially in the form of EXHIBIT C hereto, that
such Physical Security is being transferred (I) to a QIB, (II) to an
Accredited Investor or (III) in an offshore transaction in reliance on
Regulation S and, with respect to (II) or (III), at the option of the
Company, an Opinion of Counsel reasonably acceptable to the Company to the
effect that such transfer is in compliance with the Securities Act; and
(B) written instructions directing the Registrar or co-Registrar to make,
or to direct the Depository to make, an endorsement on the applicable
Global Security to reflect an increase in the aggregate amount of the
Securities represented by the Global Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the principal amount of Securities represented by the applicable
Global Security to be increased accordingly. If no 144A Global Security, IAI
Global Security or Regulation S Global Security, as the case may be, is then
outstanding, the Company shall, unless either of the events in the proviso to
Section 2.15(b) has occurred and is continuing, issue and the Trustee shall,
upon written instructions from the Company in accordance with Section 2.02,
authenticate such a Global Security in the appropriate principal amount.
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(c) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. The transfer and exchange
of Global Securities or beneficial interests therein shall be effected through
the Depository in accordance with this Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depository therefor. Upon
receipt by the Registrar or Co-Registrar of written instructions, or such other
instruction as is customary for the Depository, from the Depository or its
nominee, requesting the registration of transfer of an interest in a 144A Global
Security, an IAI Global Security or a Regulation S Global Security, as the case
may be, to another type of Global Security, together with the applicable Global
Securities (or, if the applicable type of Global Security required to represent
the interest as requested to be obtained is not then outstanding, only the
Global Security representing the interest being transferred), the Registrar or
Co-Registrar shall reflect on its records (and the applicable Global Security)
the applicable increase and decrease of the principal amount of Securities
represented by such types of Global Securities, giving effect to such transfer.
If the applicable type of Global Security required to represent the interest as
requested to be obtained is not outstanding at the time of such request, the
Company shall issue and the Trustee shall, upon written instructions from the
Company in accordance with Section 2.02, authenticate a new Global Security of
such type in principal amount equal to the principal amount of the interest
requested to be transferred.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR A
PHYSICAL SECURITY.
(i) If the Depository is at any time unwilling or unable to continue as a
depositary for the Global Securities and a successor depositary is not
appointed by the Company within 90 days or if the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of
Notes in definitive form, Physical Securities will be issued in exchange
for the Global Securities. Upon receipt by the Registrar or co-Registrar of
written instructions, or such other form of instructions as is customary
for the Depository, from the Depository or its nominee on behalf of any
Person having a beneficial interest in a Global Security and upon receipt
by the Trustee of a written order or such other form of instructions as is
customary for the Depository or the Person designated by the Depository as
having such a beneficial interest containing registration instructions and,
in the case of any such transfer or exchange of a beneficial interest in
Securities the offer and sale of which have not been registered under the
Securities Act, the following additional information and documents:
(A) if such beneficial interest is being transferred in reliance on Rule
144 under the Securities Act, delivery of a certification to that effect
(substantially in the form of EXHIBIT C hereto) and, at the option of the
Company, an Opinion of Counsel reasonably satisfactory to the Company to
the effect that such transfer is in compliance with the Securities Act; or
(B) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect (substantially in the form of EXHIBIT C
hereto) and, at the option of the Company, an Opinion of Counsel
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reasonably satisfactory to the Company to the effect that such transfer is
in compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the aggregate principal amount of the applicable Global Security
to be reduced and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and deliver to the
transferee a Physical Security in the appropriate principal amount.
(ii) Securities issued in exchange for a beneficial interest in a Global
Security pursuant to this Section 2.16(d) shall be registered in such names
and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar or co-Registrar in writing. The Registrar or co-
Registrar shall deliver such Physical Securities to the Persons in whose
names such Physical Securities are so registered.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or replacement
of Securities not bearing the Private Placement Legend, the Registrar or co-
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar or co-Registrar shall deliver only
Securities that bear the Private Placement Legend unless, and the Trustee is
hereby authorized to deliver Securities without the Private Placement Legend if,
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act; (ii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act (including pursuant to a Registration); or (iii) the date of such
transfer, exchange or replacement is two years after the later of (x) the Issue
Date and (y) the last date that the Company or any affiliate (as defined in Rule
144 under the Securities Act) of the Company was the owner of such Securities
(or any predecessor thereto).
(g) GENERAL. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. 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 Security (including any transfers
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between or among Participants or beneficial owners of interest in any Global
Security) 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. The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar
SECTION 2.17. INTEREST RATE ADJUSTMENT. Upon the occurrence of any ratings
downgrade of the Company's financial strength rating by A.M. Best ("BEST
RATING") to any level below the current rating of "B" (Fair), the per annum
interest rate payable on the Securities shall be increased by 50 basis points
for each level of downgrade, effective as of the date of the downgrade; PROVIDED
that if subsequent to any such downgrade A.M. Best upgrades the Best Rating, the
interest rate payable on the Securities shall be decreased 50 basis points for
each level of upgrade, effective as of the date of the upgrade (but in no event
shall a decreased interest rate be instituted for an upgrade above "B" (Fair).
The Company shall provide written notice to the Trustee within 10 Business Days
after a change in the Best Rating. Any gradation within a rating shall also be
taking into account. For example, a downgrade from C++ to C+ shall be deemed one
level of downgrade.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
Except as set forth in Section 3.07, no Security may be redeemed without
the consent of the Holder thereof. If a redemption is to be effected pursuant to
Section 3.07 or a Holder of a Security has otherwise consented and the Company
wishes to redeem such Security, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Securities to be redeemed. The
Company shall give such notice to a Responsible Officer of the Trustee at least
45 days before the Redemption Date (unless a shorter notice shall be agreed to
by the Trustee and the Holder of the Security to be redeemed in writing),
together with an Officers' Certificate stating that such redemption will comply
with the conditions contained herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
In the event that less than all of the outstanding principal of a Security
is to be redeemed, the Trustee may select for redemption portions of the
principal amount of Securities that have denominations equal to or larger than
$1,000 in principal amount. Securities and portions of them the Trustee so
selects shall be in amounts of $1,000 in principal amount or integral multiples
thereof. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
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SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at such Holder's registered address. Each
notice of redemption shall identify the Securities to be redeemed (including the
CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the Securities are
to be surrendered for redemption;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after
the Redemption Date and the only remaining right of the Holders is to
receive payment of the redemption price upon surrender to the Paying Agent;
and
(6) in the case of any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will
be issued.
At the Company's request, the Trustee shall give the notice of redemption on
behalf of the Company, in the Company's name and at the Company's expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest thereon, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day before the Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company is its own Paying Agent, it
shall, on or before the Redemption Date, segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest, if
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any, on all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation. If any Security surrendered for
redemption in the manner provided in the Securities shall not be so paid on the
Redemption Date due to the failure of the Company to deposit with the Paying
Agent money sufficient to pay the redemption price thereof, the principal and
accrued and unpaid interest, if any, thereon shall, until paid or duly provided
for, bear interest as provided in Sections 2.12 and 4.01 with respect to any
payment default.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
SECTION 3.07. OPTIONAL COMPANY REDEMPTION.
The Company may, at its option, redeem all or any part of the Securities
during the periods and for the redemption prices indicated in the following
table:
Redemption Price Per Security (expressed as
a percentage of the then outstanding principal
12 Months Beginning: balance of the Security to be redeemed):
-------------------- ----------------------------------------------
December 1, 2000 104%
December 1, 2001 103%
December 1, 2002 102%
December 1, 2003 101%
December 1, 2004 100%
or any date thereafter
The other provisions of this Article III (including the notice provisions
contained herein) shall apply to any redemption effected by the Company under
this Section 3.07.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the Securities in
the manner provided in the Securities. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent (other
than the Company or any Affiliates of the Company) holds on that date money
designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders of the Securities pursuant to
the terms of this Indenture.
The Company shall pay cash interest on overdue principal at the same rate
per annum borne by the Securities. The Company shall pay cash interest on
overdue installments of interest at the same rate per annum borne by the
Securities, to the extent lawful, as provided in Section 2.12.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of any office or agency required by
Section 2.03. 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 address of the Trustee set forth in Section 10.02.
SECTION 4.03. TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit or cause any of its Restricted
Subsidiaries to, enter into any transaction with any officer, director,
stockholder, Subsidiary or other Affiliate of the Company, except in the
ordinary course of its business and upon fair and reasonable terms that are no
less favorable to it than it would obtain in a comparable arm's-length
transaction with a Person other than an Affiliate of the Company or such
Restricted Subsidiary; provided, however, that nothing contained in this Section
-------- -------
4.03 shall prohibit:
(i) transactions between and among the Company and its Wholly-Owned
Restricted Subsidiaries;
(ii) transactions under incentive compensation plans, stock option plans
and other employee benefit plans, and loans and advances from the Company
or any of its Subsidiaries to its officers, in each case that have been
approved by the board of directors of the Company or any of its
Subsidiaries; and
(iii) the payment by the Company of reasonable and customary fees to
members of its board of directors.
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The determination of whether any transaction referred to in the first
paragraph of this Section 4.03 is on fair and reasonable terms as required
thereby shall be determined by the Board of Directors of the Company; PROVIDED,
that if any such transaction involves consideration in excess of $5 million the
Company shall deliver to the Trustee an Officers' Certificate stating that the
terms of such transaction were fair and reasonable and no less favorable to the
Company than would be obtained in a comparable arm's length transaction and,
PROVIDED that if any such transaction involves consideration in excess of $10
million the Company shall deliver to the Trustee a written opinion or appraisal
issued by an independent accounting, appraisal or investment banking firm that
the terms of such transaction were fair and reasonable and no less favorable to
the Company than would be obtained in a comparable arm's length transaction.
SECTION 4.04. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock, and the Company
will not permit any of its Restricted Subsidiaries to issue any shares of
preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness
(including Acquired Debt) or issue shares of Disqualified Stock or the Company's
Restricted Subsidiaries may issue shares of preferred stock if the Consolidated
Leverage Ratio of the Company, calculated on a pro forma basis after giving
effect to the incurrence of the additional Indebtedness to be incurred or the
Disqualified Stock or preferred stock to be issued and the application of the
proceeds therefrom, would have been less than 1.1 to 1. Notwithstanding the
foregoing, the Company and its Restricted Subsidiaries may Incur or maintain the
following Indebtedness (collectively, "PERMITTED DEBT"):
(i) the Indebtedness of the Company and its Restricted Subsidiaries and
Disqualified Stock existing on the Issue Date;
(ii) Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance, defease, renew or replace,
any Indebtedness (other than intercompany Indebtedness) that was permitted
to be incurred under this Section 4.04 or that was outstanding on the Issue
Date;
(iii) intercompany Indebtedness between or among the Company and any of
its Restricted Subsidiaries; PROVIDED, HOWEVER, that (i) if the Company is
the obligor on such Indebtedness to a Restricted Subsidiary of the Company
that is not a Wholly-Owned Restricted Subsidiary of the Company, such
Indebtedness is expressly subordinated to the prior payment in full in cash
of all Obligations with respect to the Securities, and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary of the Company and (B) any sale or other transfer of
any such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company shall be deemed, in each case, to
constitute an
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incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(iii);
(iv) the issuance by a Restricted Subsidiary of the Company of preferred
stock to the Company; PROVIDED, HOWEVER, that any subsequent transfer of
such preferred stock to a Person other than the Company shall be deemed to
be an issuance of preferred stock by such Restricted Subsidiary that was
not permitted by this clause (iv);
(v) Hedging Obligations that are incurred in the ordinary course of
business;
(vi) Capital Lease Obligations and/or Purchase Money Indebtedness of the
Company or a Restricted Subsidiary of the Company incurred in the ordinary
course of business not to exceed $10 million at any time outstanding;
(vii) the Guarantee by the Company of Indebtedness of a Restricted
Subsidiary of the Company that was permitted to be incurred by another
provision of this Section 4.04;
(viii) Acquired Debt assumed after the date hereof which (A) is secured by
loans made by a bank, mortgage lender, finance company or similar lending
institution in the ordinary course of its business, and (B) does not exceed
$20 million in the aggregate; and
(ix) additional Indebtedness of the Company in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding, not to
exceed $30 million at any time outstanding less any amount borrowed under
clause (vi) above.
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, incur any Indebtedness that is contractually subordinated to any
Indebtedness of the Company or any such Restricted Subsidiary unless such
Indebtedness is also contractually subordinated to the Securities on
substantially identical terms; PROVIDED, HOWEVER, that no Indebtedness shall be
deemed to be contractually subordinated to any other Indebtedness solely by
virtue of being unsecured or not guaranteed by any Restricted Subsidiary of the
Company.
For purposes of determining compliance with this Section 4.04, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (viii) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.04,
the Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this Section 4.04 and such item of Indebtedness
will be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof.
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SECTION 4.05. LIMITATION ON INVESTMENT COMPANY STATUS.
The Company and its Subsidiaries shall not take any action, or otherwise
permit to exist any circumstance, that would require the Company to register as
an "investment company" under the Investment Company Act of 1940, as amended.
SECTION 4.06. LIMITATION ON ASSET SALES.
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Asset Sale, unless (i) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of and (ii) at least 85% of such
consideration consists of (A) cash or Cash Equivalents, (B) properties and
assets to be used in the business of the Company and its Restricted Subsidiaries
and/or (C) Equity Interests in any Person which thereby becomes a Wholly-Owned
Restricted Subsidiary of the Company. The amount of any (i) Indebtedness of the
Company or any Restricted Subsidiary of the Company that is actually assumed by
the transferee in such Asset Sale and from which the Company and the Restricted
Subsidiaries of the Company are fully released shall be deemed to be cash for
purposes of determining the percentage of cash consideration received by the
Company or any of its Restricted Subsidiaries and (ii) notes or other similar
obligations received by the Company or any of its Restricted Subsidiaries from
such transferee that are immediately converted, sold or exchanged (or are
converted, sold or exchanged within thirty days of the related Asset Sale) by
the Company or any of its Restricted Subsidiaries into cash shall be deemed to
be cash, in an amount equal to the net cash proceeds realized upon such
conversion, sale or exchange, for purposes of determining the percentage of cash
consideration received by the Company or any of its Restricted Subsidiaries.
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Article Five and as a
result thereof the Company is no longer an obligor on the Securities, the
successor corporation shall be deemed to have sold the properties and assets of
the Company and its Restricted Subsidiaries not so transferred for purposes of
this Section 4.06, and shall comply with the provisions of this Section 4.06
with respect to such deemed sale as if it were an Asset Sale. In addition, the
Fair Market Value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this Section 4.06.
The Company or such Restricted Subsidiary, as the case may be, may (i)
apply the Net Cash Proceeds of any Asset Sale within 180 days of receipt thereof
to repay Specified Senior Indebtedness of the Company or such Restricted
Subsidiary and permanently reduce any related commitment, or (ii) commit in
writing to acquire, construct or improve, or acquire, construct or improve,
properties and assets to be used in the business of the Company and its
Restricted Subsidiaries and so apply such Net Cash Proceeds within 180 days
after the receipt thereof; PROVIDED, that if after the date hereof the Company
shall enter into an agreement with any third Person providing that upon the
receipt of
-34-
Net Cash Proceeds from any Asset Sale such Net Cash Proceeds will be used to
repay Indebtedness of such Person provision shall be made in such agreement
requiring that such repayment shall be made ratably (based on outstanding
principal amount then outstanding) between such Person and the Holders.
To the extent all or part of the Net Cash Proceeds of any Asset Sale are
not applied within 180 days of such Asset Sale as described in clause (i) or
(ii) of the immediately preceding paragraph (such Net Cash Proceeds, the
"UNUTILIZED NET CASH PROCEEDS"), the Company shall, within 20 days after such
180th day, make an Offer to Purchase all outstanding Securities up to a maximum
principal amount (expressed as a multiple of $1,000) of Securities equal to such
Unutilized Net Cash Proceeds, at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date; PROVIDED, HOWEVER, that the Offer to Purchase may be deferred
until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of
$40 million, at which time the entire amount of such Unutilized Net Cash
Proceeds, and not just the amount in excess of $40 million, shall be applied as
required pursuant to this paragraph.
With respect to any Offer to Purchase effected pursuant to this Section
4.06, among the Securities, to the extent the aggregate principal amount of
Securities tendered pursuant to such Offer to Purchase exceeds the Unutilized
Net Cash Proceeds to be applied to the repurchase thereof, such Securities shall
be purchased PRO RATA based on the aggregate principal amount of such Securities
tendered by each Holder. To the extent the Unutilized Net Cash Proceeds exceed
the aggregate amount of Securities tendered by the Holders of the Securities
pursuant to such Offer to Purchase, the Company may retain and utilize any
portion of the Unutilized Net Cash Proceeds not applied to repurchase the
Securities for any purpose consistent with the other terms of this Indenture.
In the event that the Company makes an Offer to Purchase the Securities,
the Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act, and any violation of the provisions of this Indenture relating
to such Offer to Purchase occurring as a result of such compliance shall not be
deemed a Default or an Event of Default.
Each Holder shall be entitled to tender all or any portion of the
Securities owned by such Holder pursuant to the Offer to Purchase, subject to
the requirement that any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount and subject to any proration among
tendering Holders as described above.
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without
-35-
limitation, any payment in connection with any merger or consolidation
involving the Company) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such of the Company and (B) dividends, payments or
distributions payable solely to the Company or its Wholly-Owned Restricted
Subsidiaries);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company or other Affiliate of the
Company (other than any such Equity Interests owned by the Company or any
Wholly-Owned Restricted Subsidiary of the Company); or
(iii) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iii)
above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the
time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the
Consolidated Leverage Ratio test set forth in the first paragraph of
Section 4.04; and
(c) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Issue Date (excluding Restricted
Payments permitted by clause (ii) of the next succeeding paragraph),
is less than the sum of (i) 50% of the aggregate cumulative
Consolidated Net Income of the Company for the period (taken as one
accounting period) from and after October 1, 1999 to the end of the
Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit), plus (ii) 100% of the aggregate
----
net cash proceeds received by the Company from the issue or sale
since the Issue Date of Equity Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock or debt securities of
the Company that have been converted into such Equity Interests
(other than Equity Interests (or Disqualified Stock or convertible
debt securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (iii) to the extent that
----
any Restricted Investment that was made after the Issue Date is sold
for cash or otherwise liquidated or repaid for cash, the lesser of
(A) the cash return of capital
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with respect to such Restricted Investment (less the cost of
disposition, if any) and (B) the initial amount of such Restricted
Investment.
The foregoing provisions do not prohibit (i) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of, other Equity Interests of the Company (other than Disqualified
Stock); PROVIDED that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement or other acquisition shall be
excluded from clause (c) (ii) of the preceding paragraph; (iii) the payment of
any dividend by a Restricted Subsidiary of the Company to the holders of its
common Equity Interests on a PRO RATA basis; (iv) the payment of any dividends
upon any preferred stock of the Company outstanding on the date hereof; (v)
payments of withholding taxes due or payments of exercise prices in connection
with exercises of options for common stock of the Company by any employee or
former employee of the Company (or any Affiliate of the Company) by the tender
of common stock owned by such employee or the withholding of shares of common
stock of the Company in connection with such option exercise as consideration
therefor in connection with compensation arrangements; (vi) any purchase,
redemption or other acquisition or retirement for a nominal amount of Equity
Interests issued pursuant to any shareholder rights plan of the Company, as the
same may be adopted or amended from time to time; (vii) payment of cash in lieu
of fractional shares of common stock that otherwise would be issuable; (viii) if
no Default or Event of Default shall have occurred and be continuing, the
payment of dividends on the Common Stock not in excess of $.15 per share
annually (as adjusted for stock splits, stock dividends, reclassifications and
the like); and (ix) payments during any twelve month period which, in the
aggregate, do not exceed $10 million.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default. For purposes of making such determination, all outstanding
Investments by the Company and its Restricted Subsidiaries (except to the extent
repaid in cash) in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation and will reduce the amount available
for Restricted Payments under the first paragraph of this Section 4.07. All such
outstanding Investments will be deemed to constitute Investments in an amount
equal to the greater of (y) the net book value of such Investments at the time
of such designation or (z) the Fair Market Value of such Investments at the time
of such designation. Such designation will only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
The amount of all non-cash Restricted Payments shall be the Fair Market
Value on the date of the Restricted Payment of the assets or securities proposed
to be transferred or issued by the Company or such Restricted Subsidiary, as the
case may be, pursuant to the Restricted Payment. The Fair Market Value of any
non-cash Restricted Payment shall be determined by the Board of Directors of the
Company, whose resolution with respect thereto shall be delivered to the
Trustee, such
-37-
determination to be based upon an opinion or appraisal issued by an accounting,
appraisal or investment banking firm of national standing if such Fair Market
Value exceeds $5 million. Not later than 50 days after the end of any fiscal
quarter (100 days in the case of the last fiscal quarter of the fiscal year)
during which any Restricted Payment is made, the Company shall deliver to the
Trustee an Officers' Certificate stating that all Restricted Payments made
during such fiscal quarter were permitted and setting forth the basis upon which
the calculations required by this Section 4.07 were computed, together with a
copy of any opinion or appraisal required by this paragraph.
SECTION 4.08. NOTICE OF DEFAULTS.
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of time, or
both, would constitute such a default) under such Indebtedness, the Company
shall promptly give written notice to the Trustee of such declaration, the
status of such default or event and what action the Company is taking or
proposes to take with respect thereto.
(b) Upon becoming aware of any Default or Event of Default, the Company
shall promptly deliver an Officers' Certificate to the Trustee specifying the
Default or Event of Default.
SECTION 4.09. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any restriction on the ability of any Restricted
Subsidiary of the Company to (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any Indebtedness owed to the Company or any
of its Restricted Subsidiaries, (ii) make loans or advances to the Company or
any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) this Indenture,
(b) applicable law, (c) any instrument governing Indebtedness or Capital Stock
of a Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the
Person, so acquired, PROVIDED that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred, (d) by
reason of customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices, (e) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired, or (f) Permitted Refinancing Indebtedness, PROVIDED that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced.
-38-
SECTION 4.10. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement, which need not comply with Section 10.05
hereof, signed by the President or a Vice President and by the Treasurer or the
Chief Financial Officer of the Company stating, as to each signer thereof
whether or not, to the best knowledge of the signers thereof, the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any grace period or requirement
of notice hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge. The first certificate to be delivered by the Company pursuant to
this Section 4.10 shall be for the fiscal year ending December 31, 1999.
SECTION 4.11. CORPORATE EXISTENCE.
Subject to Article Five, the Company shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Restricted
Subsidiary in accordance with the respective organizational documents of each
such Restricted Subsidiary and the rights (charter and statutory) and material
franchises of the Company and the Restricted Subsidiaries; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise,
or the corporate existence of any Restricted Subsidiary, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and the
Restricted Subsidiaries, taken as a whole; PROVIDED, FURTHER, HOWEVER, that a
determination of the Board of Directors of the Company shall not be required in
the event of a merger of one or more Wholly-Owned Restricted Subsidiaries of the
Company with or into another Wholly-Owned Restricted Subsidiary of the Company
or another Person, if the surviving Person is a Wholly-Owned Restricted
Subsidiary of the Company organized under the laws of the United States or a
State thereof or of the District of Columbia. This Section 4.11 shall not
prohibit the Company from taking any other action otherwise permitted by, and
made in accordance with, the provisions of this Indenture.
SECTION 4.12 LlMITATION ON DISPOSITION OF STOCK OF SUBSIDIARIES.
So long as any Securities shall be outstanding, but subject to the
provisions of Article V of this Indenture, the Company will not and will not
permit any Subsidiary to issue, sell or otherwise dispose of any shares of
Voting Stock of any Restricted Subsidiary, except for (i) directors qualifying
shares; (ii) sales or other dispositions to the Company or to one or more Wholly
Owned Restricted Subsidiaries; (iii) the sale or other disposition of all of the
Voting Stock of a Restricted Subsidiary owned by the Company and its
Subsidiaries for consideration which is at least equal to the fair value of such
Voting Stock as determined by the Company's board of directors (acting in good
faith); or (iv) any issuance, sale, assignment, transfer or other disposition
made in compliance with an order of a court or regulatory authority of competent
jurisdiction, other than an order issued at the request of the Company or any
Subsidiary.
-39-
SECTION 4.13. LIMITATION ON LIENS.
(a) The Company will not, nor will it permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any Indebtedness
secured by a Lien of or upon any shares of capital stock or Indebtedness of any
Restricted Subsidiary owned by the Company or any Subsidiary (whether such
shares of stock or Indebtedness is existing or issued on the date hereof, or
thereafter issued or created) without in any such case making or causing to be
made effective provision (and the Company covenants that in any such case it
shall make or cause to be made effective provision) whereby the Securities of
each series (together with, if the Company shall also determine, any other
Indebtedness created, incurred, issued, assumed or guaranteed by the Company or
any Restricted Subsidiary and then existing or thereafter created) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such Indebtedness, so long as such Indebtedness shall be so secured.
(b) The provisions of paragraph (a) of this Section 4.13 shall not,
however, apply to any one or more of the following:
(i) Liens upon any shares of capital stock or Indebtedness
acquired by the Company or any Restricted Subsidiary after the
date hereof to secure the payment of all or any part of the
purchase price of such shares of capital stock or Indebtedness
upon the acquisition thereof by the Company or any Restricted
Subsidiary;
(ii) Liens upon any shares of capital stock or Indebtedness
existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary so long as such Liens were not incurred as
a result of or in anticipation of such acquisition;
(iii) Liens upon any shares of capital stock or Indebtedness of
any Person existing at the time such Person becomes a Restricted
Subsidiary so long as such Liens were not incurred as a result of
or in anticipation of such Person becoming a Restricted
Subsidiary;
(iv) Liens to secure Indebtedness of any Restricted Subsidiary to
the Company or to another Restricted Subsidiary; and
(v) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
Lien referred to in the foregoing clauses (i) through (iv),
inclusive, PROVIDED that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
shall be limited
-40-
to all or a part of the shares of capital stock or Indebtedness
which was subject to the Lien so extended, renewed or replaced.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
(a) Following the occurrence of a Change of Control (the date of such
occurrence being the "CHANGE OF CONTROL DATE"), the Company shall notify the
Holders of the Securities of such occurrence in the manner prescribed by this
Indenture and shall, within 30 days after the Change of Control Date, make an
Offer to Purchase all Securities then outstanding at a purchase price in cash
equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date (subject to the right of Holders
of record on the relevant Interest Record Date to receive interest due on the
relevant Interest Payment Date). Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount.
(b) On or prior to the Purchase Date specified in the Offer to Purchase,
the Company shall (i) accept for payment all Securities or portions thereof
validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.04, money sufficient to pay the Purchase Price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee for cancellation all Securities so accepted together
with an Officers' Certificate stating the Securities or portions thereof
accepted for payment by the Company. The Paying Agent (or the Company, if so
acting) shall promptly mail or deliver to Holders of Securities so accepted,
payment in an amount equal to the Purchase Price for such Securities, and the
Trustee shall promptly authenticate and mail or deliver to each Holder of
Securities a new Security or Securities equal in principal amount to any
unpurchased portion of the Security surrendered as requested by the Holder. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
(c) If the Company makes an Offer to Purchase, the Company will comply
with all applicable tender offer laws and regulations, including, to the extent
applicable, Section 14(e) and Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Securities
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.14, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.14.
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ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. MERGERS, SALE OF ASSETS, ETC.
(a) Subject to Section 4.14 of this Indenture, the Company may consolidate
or merge with or into (whether or not the Company is the surviving corporation),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity provided that (i) the
--------
Company is the surviving corporation or the entity or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (ii) the
entity or Person formed by or surviving any such consolidation or merger (if
other than the Company) or the entity or Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made assumes
all the obligations of the Company under the Securities and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately before and after such transaction, no Default or
Event of Default exists; and (iv) the Company or the entity or Person formed by
or surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made (A) will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (B) would, at the time of such
transaction and after giving pro forma effect thereto, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Consolidated Leverage
Ratio test or the Interest Charges Coverage Ratio test set forth in the first
paragraph of Section 4.04.
(b) Notwithstanding paragraph (a) above or paragraph (c) below, any
Wholly-Owned Restricted Subsidiary of the Company may consolidate with or merge
into the Company; PROVIDED that the Company is the surviving corporation.
(c) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all the properties and assets of one or more Restricted
Subsidiaries the Equity Interest of which constitutes all or substantially all
the properties and assets of the Company shall be deemed to be the transfer of
all or substantially all the properties and assets of the Company.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 5.01 in which the Company is not
the Surviving Person and the Surviving Person is to assume all the Obligations
of the Company under the Securities and this Indenture pursuant to a
supplemental indenture, such Surviving Person shall succeed to, and be
substituted for,
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and may exercise every right and power of, the Company, and the Company shall be
discharged from its Obligations under this Indenture and the Securities.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following shall be an "Event of Default" for purposes of this
Indenture:
(a) failure to pay principal of (or premium, if any, on) any Security when
due;
(b) failure to pay any interest on any Security when due, which failure
continues for 30 days or more;
(c) failure by the Company or any of its Restricted Subsidiaries to comply
with its obligations under Section 4.04, Section 4.05, Section 4.06,
Section 4.07 or Section 4.09;
(d) failure by the Company or any of its Restricted Subsidiaries for 30
days after notice from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding to comply
with any of the other covenants or agreements in this Indenture;
(e) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its Restricted Subsidiaries) whether such Indebtedness now exists, or is
created after the Issue Date, which default (a) is caused by a failure to
pay principal of or premium, if any, or interest on such Indebtedness prior
to the expiration of the grace period provided in such Indebtedness on the
date of such default (a "PAYMENT DEFAULT") or (b) results in the
acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated,
aggregates $2 million or more;
(f) failure by the Company or any of its Restricted Subsidiaries to pay
final non-appealable judgments aggregating in excess of $10 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(g) the Company or any of its Significant Subsidiaries (or one or more
Restricted Subsidiaries that, taken together would constitute a Significant
Subsidiary) pursuant to or within the meaning of any Bankruptcy Law: (i)
admits in writing its inability to pay its debts generally as they become
due; (ii) commences a voluntary case or proceeding; (iii) consents to the
entry
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of an order for relief against it in an involuntary case or proceeding;
(iv) consents or acquiesces in the institution of a bankruptcy or
insolvency proceeding against it; (v) consents to the appointment of a
Custodian of it or for all or substantially all of its property; or (vi)
makes a general assignment for the benefit of its creditors, or any of them
takes any action to authorize or effect any of the foregoing; or
(h) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company or any
Significant Subsidiary (or one or more Restricted Subsidiaries that, taken
together would constitute a Significant Subsidiary) of the Company in an
involuntary case or proceeding; (ii) appoints a Custodian of the Company or
any Significant Subsidiary (or one or more Restricted Subsidiaries that,
taken together would constitute a Significant Subsidiary) of the Company
for all or substantially all of its property; or (iii) orders the
liquidation of the Company or any Significant Subsidiary (or one or more
Restricted Subsidiaries that, taken together would constitute a Significant
Subsidiary) of the Company; and in each case the order or decree remains
unstayed and in effect for 60 days; PROVIDED, HOWEVER, that if the entry of
such order or decree is appealed and dismissed on appeal, then the Event of
Default hereunder by reason of the entry of such order or decree shall be
deemed to have been cured.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
SECTION 6.02. ACCELERATION.
If an Event of Default with respect to the Securities (other than an Event
of Default specified in clauses (g) or (h) of Section 6.01) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities, by notice in writing to the Company (and
to the Trustee if given by the Holders) may declare the unpaid principal of (and
premium, if any) and accrued interest to the date of acceleration on all
outstanding Securities to be due and payable immediately and, upon any such
declaration, such principal amount (and premium, if any) and accrued interest,
notwithstanding anything contained in this Indenture or the Securities to the
contrary, shall become immediately due and payable.
If an Event of Default specified in clauses (g) or (h) of Section 6.01
occurs, all unpaid principal of and accrued interest on all outstanding
Securities shall IPSO FACTO become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Any such
declaration with respect to the Securities may be rescinded and annulled by the
Holders of a majority in aggregate principal amount of the outstanding
Securities by written notice to the Trustee if all existing Events of Default
(other than the nonpayment of principal of and interest on the Securities which
has become due solely by virtue of such acceleration) have been cured or waived
and if the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
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SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture. The Trustee may maintain a
proceeding even if it does not possess any of the Securities or does not produce
any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy maturing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULT.
Subject to Sections 2.09, 6.07 and 9.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on any
Security as specified in clauses (a), (b) and (c) of Section 6.01 or a Default
in respect of any term or provision of this Indenture that may not be amended or
modified without the consent of each Holder affected as provided in Section
9.02. The Company shall deliver to the Trustee an Officers' Certificate stating
that the requisite percentage of Holders have consented to such waiver and
attaching copies of such consents. In case of any such waiver, the Company, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder and under the Securities, respectively. This Section 6.04 shall be in
lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA
is hereby expressly excluded from this Indenture and the Securities, as
permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to Section 2.09, the Holders of a majority in principal amount of
the outstanding Securities may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of another Holder, it being understood
that the Trustee shall have no duty (subject to Section 7.01) to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
holders, or that may involve the Trustee in personal liability; PROVIDED,
HOWEVER, that the Trustee may take any other action deemed proper by the Trustee
which is not
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inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss,
damage, claim, liability or expense caused by taking such action or following
such direction. This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of
the TIA, and such Section 316(a)(1)(A) of the TIA is hereby expressly excluded
from this Indenture and the Securities, as permitted by the TIA.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(ii) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue a
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability,
claim, damage or expense;
(iv) 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
(v) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities do not give the Trustee a direction
which is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of or interest on a Security, on or after
the respective due dates expressed in the Security, 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 the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest specified in
Section 6.01(a), (b) or (c) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal and
accrued interest remaining unpaid, together with interest overdue on principal
and to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each
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case at the rate PER ANNUM borne by the Securities 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 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may 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 allowed in
any judicial proceedings relative to the Company (or any other obligor upon the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same, and any Custodian in any such
judicial proceedings 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 agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; PROVIDED,
HOWEVER, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
creditors' committee.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this Article Six,
it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to the Holders pursuant to this Section
6.10.
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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
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 6.11 shall not apply to a suit by the Trustee, a suit by a Holder or
group of Holders of more than 10% in aggregate principal amount of the
outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal or interest on any Securities on or
after the respective due dates expressed in the Security.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of such
duties as are specifically set forth herein; and
(2) 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 conforming to the
requirements of this Indenture; however, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of any mathematical calculations or other facts stated therein).
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(3) 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 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall
have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive from such Holders an indemnity satisfactory
to it in its sole discretion against such risk, claim, liability, loss, fee or
expense which might be incurred by it in compliance with such request or
direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(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 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may rely on 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, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
the provisions of Section 10.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion or in the event the Company fails to provide such
Officers' Certificate and/or opinion of counsel within a reasonable period
following such request.
(c) The Trustee may act through attorneys and agents of its selection and
shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed
with due care and appointed with the consent of the Company.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(e) Before the Trustee acts or refrains from acting, it may consult with
counsel of its own selection and the advice or opinion of such counsel as
to matters of law shall be full and complete authorization and protection
from liability in respect of any action taken, omitted
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or suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(g) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(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, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability of any kind by reason of such inquiry or
investigation.
(i) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or
unless the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
(j) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(k) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its gross negligence or willful misconduct.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee, subject to Section
7.10 hereof. Any Agent may do the same with like rights. However, the Trustee
is subject to Sections 7.10 and 7.11.
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SECTION 7.04. 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 Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing and a
Responsible Officer of the Trustee has actual knowledge of such Defaults or
Events of Default, the Trustee shall mail to each Holder notice of the Default
or Event of Default within 30 days after the occurrence thereof. Except in the
case of a Default or an Event of Default in payment of principal of or interest
on any Security or a Default or Event of Default in complying with Section 5.01,
the Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the interest
of Holders. This Section 7.05 shall be in lieu of the proviso to Section 315(b)
of the TIA and such proviso to Section 315(b) of the TIA is hereby expressly
excluded from this Indenture and the Securities, as permitted by the TIA.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), as amended, within 60 days after each
July 1st beginning with July 1, 2000, the Trustee shall mail to each Holder a
report dated as of such July 1st that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b), (c) and (d). A copy of each
such report at the time of its mailing to Holders shall be filed with the SEC
and each stock exchange, if any, on which the Securities are listed. The
Company shall promptly notify the Trustee in writing if the Securities become
listed on any stock exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
from time to time agree in writing for its services. 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 upon request for all
disbursements, expenses and advances, including all costs and expenses of
collection (including reasonable fees, disbursements and expenses of its agents
and outside counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's gross negligence or willful misconduct. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents, accountants, experts and outside counsel and any taxes
or other expenses incurred by a trust created pursuant to Section 8.01 hereof.
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The Company shall fully indemnify the Trustee for, and hold it harmless
against any and all loss, damage, claims, liability or expense, including taxes
(other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent that
such loss, damage, claim, liability or expense is due to its own gross
negligence or willful misconduct. The Trustee shall notify the Company promptly
of any claim asserted against the Trustee for which it may seek indemnity.
However, the failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder unless the Company has been prejudiced
thereby. The Company shall defend the claim and the Trustee shall cooperate in
the defense at the Company's expense, PROVIDED that the Company shall not be
liable in any action or for which it has assumed the defense for the expenses of
separate counsel to the Trustee unless (1) the employment of separate counsel
has been authorized by the Company, (2) the Trustee has reasonably concluded
(based upon advice of counsel to the Trustee) that there may be legal defenses
available to the Trustee that are different from or in addition to those
available to the Company or (3) a conflict or potential conflict exists (based
upon advice of counsel to the Trustee) between the Trustee and the Company, and
PROVIDED, FURTHER, that in any such event the Company's reimbursement obligation
with respect to separate counsel of the Trustee will be limited to the
reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without their written
consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee as a result of its own gross negligence or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Securities
or the Purchase Price or redemption price of any Securities to be purchased
pursuant to an Offer to Purchase or redeemed.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's under this Section 7.07
and any claim arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to Article Eight
and any rejection or termination under any Bankruptcy Law.
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SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee and the Company in writing and
may appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), 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 Securities may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. As promptly as practicable after
that, the retiring Trustee shall transfer, after payment of all sums then owing
to the Trustee pursuant to Section 7.07, all property held by it as Trustee to
the successor Trustee, subject to the Lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Securities may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee. If the Trustee fails to comply with
Section 7.10, any Holder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or
banking corporation, the resulting, surviving or transferee corporation or
banking corporation without any further act shall be the successor Trustee;
PROVIDED, HOWEVER, that such corporation shall be otherwise qualified and
eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. If the Trustee has or shall
acquire any "conflicting interest" within the meaning of TIA Section 310(b), the
Trustee and the Company shall comply with the provisions of TIA Section 310(b);
PROVIDED, HOWEVER, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10, the Trustee shall promptly
resign in the manner and with the effect hereinbefore specified in this Article
Seven. The provisions of TIA Section 310 shall apply to the Company and any
other obligor of the Securities.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY.
The Trustee shall comply with 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 EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. TERMINATION OF THE COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under the Securities and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if:
(i) either (a) all the Securities theretofore authenticated and delivered
(except lost, stolen or destroyed Securities which have been replaced or
paid and Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company
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and thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee for cancellation or (b) all Securities not
theretofore delivered to the Trustee for cancellation have become due and
payable or have been called for redemption and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Securities
not theretofore delivered to the Trustee for cancellation, for principal
of, premium, if any, and interest on the Securities to the date of deposit
together with irrevocable instructions from the Company directing the
Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;
(ii) the Company has paid all other sums payable under this Indenture by
the Company; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the first paragraph of this Section 8.01, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 7.07, 8.05 and 8.06 shall
survive until the Securities are no longer outstanding pursuant to the last
paragraph of Section 2.08. After the Securities are no longer outstanding, the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After such
delivery or irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Securities and this
Indenture except for those surviving obligations specified above.
SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
(a) The Company may terminate its obligations in respect of the Securities
by delivering all outstanding Securities to the Trustee for cancellation and
paying all sums payable by it on account of principal of and interest on all
Securities or otherwise. In addition to the foregoing, the Company may, at its
option, at any time elect to have either paragraph (b) or (c) below be applied
to all outstanding Securities, subject in either case to compliance with the
conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.03, be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Securities,
except for (i) the rights of Holders to receive payments in respect of the
principal of, premium, if any, and interest on the Securities when such payments
are due, (ii) the Company's obligations with respect to the Securities under
Sections 2.02 through 2.07, inclusive, 2.10, 2.13 and 4.02, (iii) the rights,
powers, trust, duties and immunities of the Trustee under this Indenture and the
Company's obligations in connection therewith and (iv) Article Eight of this
Indenture (hereinafter, "LEGAL DEFEASANCE"). Subject to compliance with this
Article Eight, the Company may
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exercise its option under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.03, be released from its obligations
under the covenants contained in Sections 4.03 through 4.11, inclusive, and
Article Five with respect to the outstanding Securities (hereinafter, "COVENANT
DEFEASANCE") and thereafter any omission to comply with such obligations shall
not constitute a Default or an Event of Default with respect to the Securities.
In addition, upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), subject to the satisfaction of the
conditions set forth in Section 8.03, any failure or omission to comply with
such obligations shall not constitute a Default or Event of Default with respect
to the Securities.
SECTION 8.03. CONDITIONS TO LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance pursuant to Section 8.02(b) or
Covenant Defeasance pursuant to Section 8.02(c):
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in U.S. dollars or United States
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 the Securities on the stated date for payment thereof or on
the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02(b), the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this 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 Counsel shall confirm that, the Holders of the Securities 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 8.02(c), the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
confirming that the Holders of the Securities 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;
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(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 borrowing of funds to be applied to such deposit) or
insofar as Sections 6.01(g) and 6.01(h) are concerned, at any time in the
period ending on the 91st day after the date of such deposit;
(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
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent 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 assuming no intervening bankruptcy or insolvency of the
Company between the date of deposit and the 91st day following the deposit
and that no Holder is an insider of the Company, after the 91st day
following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar law
affecting creditors' rights generally.
Notwithstanding the foregoing, the opinion of counsel required by clause
(b) above need not be delivered if all Securities not theretofore delivered to
the Trustee for cancellation (x) have become due and payable, (y) will become
due and payable on the Final Maturity Date within one year or (z) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
SECTION 8.04. APPLICATION OF TRUST MONEY; TRUSTEE ACKNOWLEDGMENT AND INDEMNITY.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.03, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities. After such delivery or irrevocable deposit and
delivery of an Officers' Certificate and Opinion of Counsel, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Securities and this Indenture except for those surviving obligations
specified above. The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United States
Government Obligations
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deposited pursuant to Section 8.03 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 outstanding Securities.
SECTION 8.05. REPAYMENT TO COMPANY.
Subject to Sections 7.07 and 8.04, the Trustee shall promptly pay to the
Company upon written request any excess money held by it at any time. The
Trustee shall pay to the Company upon written request any money held by it for
the payment of principal or interest that remains unclaimed for two years;
PROVIDED, HOWEVER, that the Trustee before being required to make any payment
may at the expense of the Company cause to be published once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money notice that such money remains unclaimed and that, after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Holders entitled to
money must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and all liability of
the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.06. REINSTATEMENT.
If the Trustee is unable to apply any money or United States Government
Obligations in accordance with Section 8.02 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 until such
time as the Trustee is permitted to apply all such money or United States
Government Obligations in accordance with Section 8.02; PROVIDED, HOWEVER, that
if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or United States Government Obligations held by the
Trustee.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a resolution of the Board of Directors, and
the Trustee may amend or supplement this Indenture or the Securities without
notice to or consent of any Holder:
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(a) to cure any ambiguity, defect or inconsistency; PROVIDED, HOWEVER,
that such amendment or supplement does not adversely affect the rights of
any Holder;
(b) to effect the assumption by a successor Person of all obligations of
the Company under the Securities and this Indenture in connection with any
transaction complying with Article Five of this Indenture;
(c) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit or rights
to the Holders;
(f) to make any other change that does not adversely affect the rights of
any Holder under this Indenture; or
(g) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company;
PROVIDED, HOWEVER, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 9.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee may modify, amend or supplement, or waive compliance
by the Company with any provision of, this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Securities. However, without the consent of each Holder affected, no
such modification, amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, may:
(a) reduce the principal amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of any Security
or alter the provisions with respect to the repurchase or redemption of the
Securities (other than provisions relating to Section 4.06 or 5.03);
(c) reduce the rate of or change the time for payment of interest on any
Security,;
(d) make any Security payable in money other than that stated in the
Securities;
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(e) make any change in the provisions of this Indenture relating to the
rights of holders of Securities to receive payments of principal of or
premium, if any, or interest on the Securities;
(f) modify any provisions of Section 6.04 (other than to add sections of
this Indenture or the Securities subject thereto) or 6.07 or this Section
9.02 (other than to add sections of this Indenture or the Securities which
may not be modified, amended, supplemented or waived without the consent of
each Holder affected);
(g) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default
in respect thereof;
(h) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders thereof as provided in
Section 6.02 and a waiver of the payment default that resulted from such
acceleration);
(i) waive a repurchase or redemption payment with respect to any Security
(other than a payment required by Section 4.06 or 5.03); or
(j) modify the ranking or priority of any Security in any manner adverse
to the Holders of the Securities.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders 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 amendment, supplement or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. RECORD DATE FOR CONSENTS AND EFFECT OF CONSENTS.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then those persons
who were Holders of Securities at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
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amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date. The Trustee is entitled to rely upon any electronic
instruction from beneficial owners to the Holders of any Global Security. 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 (i) of
Section 9.02. In that case the amendment, supplement or waiver shall bind each
Holder of a Security who has consented to it and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder's Security.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determine, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture and that such amendment, supplement or waiver
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms (subject to customary exceptions). The Trustee may,
but shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive an indemnity reasonably satisfactory to it.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA that are required to
be a part of this Indenture, and shall, to the extent applicable, be governed by
such provisions. If any provision of this Indenture modifies any TIA provision
that may be so modified, such TIA provision shall be deemed to apply to this
Indenture as so modified. If any provision of this Indenture excludes any TIA
provision that may be so excluded, such TIA provision shall be excluded from
this Indenture.
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The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 10.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing and
delivered in person, by facsimile and confirmed by overnight courier, or mailed
by first-class mail addressed as follows:
if to the Company:
Vesta Insurance Group, Inc.
0000 Xxxxx Xxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
if to the Trustee:
Regions Bank
Corporate Trust Department
000 00xx Xxxxxx Xxxxx
Xxxxx 0
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxx
Facsimile: Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed, first-class, postage prepaid, to a Holder
including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
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. Except for a
notice to the Trustee, which is deemed given only when received, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
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SECTION 10.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; PROVIDED, HOWEVER, that with respect to
matters of fact an Opinion of Counsel may rely on an Officers' Certificate
or certificates of public officials.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE.
Each certificate with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements contained in such certificate are
based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
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SECTION 10.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.07. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE SECURITIES
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.08. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
SECTION 10.09. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 10.10. 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 10.11. SEVERABILITY.
In case any provision in this Indenture, in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
SECTION 10.12. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
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SECTION 10.13. LEGAL HOLIDAYS.
If a payment date is not a Business Day at a place of payment, payment may
be made at that place on the next succeeding Business Day.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
VESTA INSURANCE GROUP, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman & Executive V.P.
REGIONS BANK, as Trustee
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxxx Title
Senior Vice President
Corporate Trust Manager
[SIGNATURE PAGE TO SENIOR NOTE INDENTURE]
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EXHIBIT A
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM AND, IN THE CASE OF THE FOREGOING CLAUSE (D), A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE ISSUERS AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
VESTA INSURANCE GROUP, INC.
12.5% Senior Notes due 2005
CUSIP No.: 925391 AB 0
No. _______________
VESTA INSURANCE GROUP, INC., a Delaware corporation (the "COMPANY," which
term includes any successor corporation), for value received, promises to pay to
___________ or registered assigns the principal sum of
________________________________ on December 30, 2005.
Interest Payment Dates: January 15 and July 15, commencing on July
15, 2000.
Interest Record Dates: January 1 and July 1.
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Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
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IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
VESTA INSURANCE GROUP, INC.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
Dated: December __, 1999
This is one of the 12.5% Senior Notes due 2005 described in the
within-mentioned Indenture.
Dated: December __, 1999
REGIONS BANK,
as Trustee
By: ____________________________________
Authorized Signatory
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(REVERSE OF SECURITY)
VESTA INSURANCE GROUP, INC.
12.5% Senior Notes due 2005
1. INTEREST.
VESTA INSURANCE GROUP, INC. (the "COMPANY") promises to pay interest on
the principal amount of this Security at the rate per annum shown above. Cash
interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the Issue Date.
The Company will pay interest semi-annually in arrears on each Interest Payment
Date, commencing on July 15, 2000. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand and on overdue installments of interest (without regard to any applicable
grace periods) to the extent lawful from time to time on demand, in each case at
the rate then borne by the Securities. The interest rate on the Securities is
subject to upward adjustment upon the occurrence of certain events as described
in the Indenture.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Interest Record Date immediately preceding the Interest Payment Date even
if the Securities are canceled on registration of transfer or registration of
exchange after such Interest Record Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts ("U.S. LEGAL TENDER"). However,
the Company may pay principal and interest by wire transfer of Federal funds
(provided that the Paying Agent shall have received wire instructions on or
prior to the relevant Interest Record Date), or interest by check payable in
such U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Regions Bank, an Alabama banking corporation (the "TRUSTEE")
will act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to the Holders. The Company may, subject to certain
exceptions, act as Registrar.
4. INDENTURE.
The Company issued the Securities under an Indenture, dated as of December
30, 1999 (the "INDENTURE"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. This Security is one of a duly authorized issue of Securities of the
Company designated as its 12.5% Senior Notes due 2005 (the "SECURITIES"),
limited in aggregate principal amount to $44,082,000, which may be issued under
the Indenture. All Securities issued under the Indenture are treated as a
single class of securities under the Indenture. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture (except as otherwise
indicated in the Indenture) until such time as the Indenture is qualified under
the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and holders of Securities are referred
to the Indenture and the TIA for a statement of them. The Securities are general
unsecured obligations of the Company.
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5. REDEMPTION.
A Security may be redeemed with the consent of the Holder thereof or at the
initiation of the Company at specified times and prices as set forth in the
Indenture. If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent for the
Securities funds in satisfaction of the redemption price pursuant to the
Indenture and the Paying Agent is not prohibited from paying such funds to the
Holders pursuant to the terms of the Indenture.
The Securities are redeemable at the option of the Holders upon the
occurrence of a Change of Control (as defined in the Indenture).
6. LIMITATION ON DISPOSITION OF ASSETS.
The Company is subject to certain limitations on disposing of its assets
and, subject to certain conditions and certain exceptions, is obligated to make
an Offer to Purchase Securities at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date (subject to the right of Holders of record on the relevant
Interest Record Date to receive interest due on the relevant Interest Payment
Date) with the proceeds of certain asset dispositions. Such an Offer to
Purchase is further subject to the prior payment in full of the principal and
premium of and interest on the Securities.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer
of or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities or
portions thereof selected for redemption, except the unredeemed portion of any
security being redeemed in part.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Security shall be treated as the owner of it for
all purposes.
9. UNCLAIMED FUNDS.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Company at
their written request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
10. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
The Company may be discharged from its obligations under the Indenture and
the Securities, except for certain provisions thereof, and may be discharged
from obligations to comply with certain covenants contained in the Indenture and
the Securities, in each case upon satisfaction of certain conditions specified
in the Indenture.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing
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Default or Event of Default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture and the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated Securities
or comply with any requirements of the SEC in connection with the qualification
of the Indenture under the TIA, or make any other change that does not
materially adversely affect the rights of any Holder of a Security.
12. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and the Restricted Subsidiaries to make restricted
payments, to incur indebtedness, to grant liens, to sell certain assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
to the Company, to consolidate, merge or sell all or substantially all of its
assets in certain instances and to engage in transactions with affiliates. The
limitations are subject to a number of important qualifications and exceptions
which are contained in the Indenture. The Company must report annually to the
Trustee on compliance with such limitations.
13. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. Holders of Securities may not
enforce the Indenture or the Securities, except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Securities unless
it has received indemnity reasonably satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a majority in
aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of certain continuing Defaults or Events of Default
if it determines that withholding notice is in their interest.
14. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries or its Affiliates as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
16. AUTHENTICATION.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
17. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a Security
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).
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18. 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 Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
19. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture and this
Security without regard to principles of conflicts of laws to the extent that
the application of the laws of another jurisdiction would be required thereby.
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EXHIBIT B
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUERS OR
THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
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EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 12.5% Senior Notes due 2005 (THE "SECURITIES") of VESTA INSURANCE
GROUP, INC.
This Certificate relates to $_______ principal amount of Securities held in
the form of* ___ a beneficial interest in a Global Security or* _______ Physical
Securities by ______ (the "TRANSFEROR").
The Transferor:*
/ / has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Physical Security or Physical Securities in definitive, registered
form of authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
/ / has requested that the Registrar by written order exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Securities does not require registration under the Securities
Act of 1933, as amended (the "ACT"), because*:
/ / Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
Such Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act) which delivers a certificate to the Trustee in the form of
EXHIBIT E to the Indenture.
/ / Such Security is being transferred in reliance on Rule 144 under the
Act.
/ / Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 under the Act to a person other than an
institutional "accredited investor."
[An Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this certification.]
____________________________________
[INSERT NAME OF TRANSFEROR]
By:_________________________________
[Authorized Signatory]
Date: ______________________
*Check applicable box.
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EXHIBIT D
FORM OF TRANSFEREE LETTER OF REPRESENTATION
Vesta Insurance Group, Inc.
c/o [Trustee]
Dear Sirs:
This certificate is delivered to request a transfer of $________ principal
amount of the 12.5% Senior Notes due 2005 (the "NOTES") of Vesta Insurance
Group, Inc. (the "COMPANY"). Upon transfer, the Notes would be registered in the
name of the new beneficial owner as follows:
Name: _____________________________
Address: __________________________
Taxpayer ID Number: _______________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the "SECURITIES
ACT")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risk of our investment in the Notes and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date which is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the"RESALE
RESTRICTION TERMINATION DATE") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an
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institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is purchasing for its own account or
for the account of such an institutional "accredited investor," in each case in
a minimum principal amount of Notes of $250,000, (e) pursuant to offers and
sales that occur outside the United States within the meaning of Regulation
Xxxxxx the Securities Act or (f) pursuant to any other available exemption from
the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (d) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the transferee
substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Company and the Trustee reserve the right prior
to any offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certificates and/or other information
satisfactory to the Company and the Trustee.
Dated: _________________ TRANSFEREE: ___________________________
By: ___________________________________
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EXHIBIT E
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
_______________, ____
[Trustee]
Attention:
Re: Vesta Insurance Group, Inc. (the "Company") 12.5% Senior Notes due 2005
(the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a designated off-
shore securities market and neither we nor any person acting on our behalf knows
that the transaction has been prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions applicable
to the Securities.
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. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By: __________________________
[Authorized Signatory]
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