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Exhibit 4.1
EXECUTION VERSION
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WCI COMMUNITIES, INC.
AND
THE GUARANTORS LISTED
ON THE SIGNATURE PAGES HERETO
SERIES A AND SERIES B 6-5/8 % SENIOR SUBORDINATED NOTES DUE
2015
----------
INDENTURE
Dated as of March 10, 2005
----------
THE BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
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CROSS-REFERENCE TABLE
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TIA
Indenture
Section
Section
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310(a)(1)
................................................. 7.10
(a)(2)
................................................. 7.10
(a)(3)
................................................. N.A.
(a)(4)
................................................. N.A.
(a)(5)
................................................. 7.10
(b)
.................................................... 7.10
(c)
.................................................... N.A.
311(a)
.................................................... 7.11
(b)
.................................................... 7.11
(c)
.................................................... N.A.
312(a)
.................................................... 2.05
(b)
.................................................... 13.03
(c)
.................................................... 13.03
313(a)
.................................................... 7.06
(b)(2)
................................................. 7.07
(c)
.................................................... 7.06; 13.02
(d)
.................................................... 7.06
314(a)
.................................................... 4.03; 4.04; 13.02
(c)(1)
................................................. 13.04
(c)(2)
................................................. 13.04
(c)(3)
................................................. N.A.
(e)
.................................................... 13.05
(f)
.................................................... N.A.
315(a)
.................................................... 7.01
(b)
.................................................... 7.05,13.02
(c)
.................................................... 7.01
(d)
.................................................... 7.01
(e)
.................................................... 6.11
316(a) (last sentence)
.................................... 2.09
(a)(1)(A)
.............................................. 6.05
(a)(1)(B)
.............................................. 6.04
(a)(2)
................................................. N.A.
(b)
.................................................... 6.07
(c)
.................................................... 2.12
317(a)(1)
................................................. 6.08
(a)(2)
................................................. 6.09
(b)
.................................................... 2.04
318(a)
.................................................... 13.01
(b)
.................................................... N.A.
(c)
.................................................... 13.01
</TABLE>
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N.A. means Not Applicable
Note: This Cross-Reference Table is not
part of this Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
1.01
Definitions......................................................
1
1.02 Other
Definitions................................................
17
1.03 Incorporation by
Reference of Trust Indenture Act................ 18
1.04 Rules of
Construction............................................
18
ARTICLE II
THE NOTES
2.01 Form and
Dating..................................................
19
2.02 Execution and
Authentication..................................... 20
2.03 Registrar and Paying
Agent....................................... 20
2.04 Paying Agent to Hold
Money in Trust.............................. 21
2.05 Holder
Lists.....................................................
21
2.06 Transfer and
Exchange............................................ 21
2.07 Replacement
Notes................................................ 32
2.08 Outstanding
Notes................................................ 32
2.09 Treasury
Notes...................................................
33
2.10 Temporary
Notes..................................................
33
2.11
Cancellation.....................................................
33
2.12 Defaulted
Interest...............................................
33
2.13 CUSIP
Numbers....................................................
34
ARTICLE III
REDEMPTION AND PREPAYMENT
3.01 Notices to
Trustee............................................... 34
3.02 Selection of Notes to
Be Redeemed................................ 34
3.03 Notice of
Redemption.............................................
34
3.04 Effect of Notice of
Redemption................................... 35
3.05 Deposit of Redemption
Price...................................... 35
3.06 Notes Redeemed in
Part........................................... 36
3.07 Optional
Redemption..............................................
36
3.08 Mandatory
Redemption.............................................
36
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ARTICLE IV
COVENANTS
4.01 Payment of
Notes................................................. 37
4.02 Maintenance of Office
or Agency.................................. 37
4.03
Reports..........................................................
37
4.04 Compliance
Certificate........................................... 38
4.05
Taxes............................................................
39
4.06 Stay, Extension and
Usury Laws................................... 39
4.07 Restricted
Payments.............................................. 39
4.08 Dividend and Other
Payment Restrictions Affecting Subsidiaries... 42
4.09 Incurrence of
Indebtedness and Issuance of Preferred Stock....... 44
4.10 Application of Fall
Away Covenants............................... 47
4.11 Transactions with
Affiliates..................................... 47
4.12
Liens............................................................
48
4.13 Business
Activities..............................................
48
4.14 Corporate
Existence..............................................
48
4.15 Offer to Repurchase
Upon Change of Control....................... 48
4.16 No Senior Subordinated
Debt...................................... 49
4.17 Limitation on
Issuances of Guarantees of Indebtedness............ 49
4.18 Payments for
Consent............................................. 50
ARTICLE V
SUCCESSORS
5.01 Merger, Consolidation,
or Sale of Assets......................... 50
5.02 Successor Corporation
Substituted................................ 51
ARTICLE VI
DEFAULTS AND REMEDIES
6.01 Events of
Default................................................
51
6.02
Acceleration.....................................................
53
6.03 Other
Remedies...................................................
53
6.04 Waiver of Past
Defaults.......................................... 53
6.05 Control by
Majority.............................................. 53
6.06 Limitation on
Suits.............................................. 53
6.07 Rights of Holders of
Notes to Receive Payment.................... 54
6.08 Collection Suit by
Trustee....................................... 54
6.09 Trustee May File
Proofs of Claim................................. 54
6.10
Priorities.......................................................
55
6.11 Undertaking for
Costs............................................ 55
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ARTICLE VII
TRUSTEE
7.01 Duties of
Trustee................................................
55
7.02 Rights of
Trustee................................................
56
7.03 Individual Rights of
Trustee..................................... 57
7.04 Trustee's
Disclaimer.............................................
57
7.05 Notice of
Defaults...............................................
58
7.06 Reports by Trustee to
Holders of the Notes....................... 58
7.07 Compensation and
Indemnity....................................... 58
7.08 Replacement of
Trustee........................................... 59
7.09 Successor Trustee by
Merger, etc................................. 60
7.10 Eligibility;
Disqualification.................................... 60
7.11 Preferential
Collection of Claims Against Company................ 60
7.12 Assignment of Rights,
Not Assumption of Duties................... 60
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.01 Option to Effect Legal
Defeasance or Covenant Defeasance......... 60
8.02 Legal Defeasance and
Discharge................................... 61
8.03 Covenant
Defeasance..............................................
61
8.04 Conditions to Legal or
Covenant Defeasance....................... 61
8.05 Deposited Money and
Government Securities to be Held in Trust;
Other Miscellaneous Provisions................................
63
8.06 Repayment to
Company............................................. 63
8.07
Reinstatement....................................................
63
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
9.01 Without Consent of
Holders of Notes.............................. 64
9.02 With Consent of
Holders of Notes................................. 64
9.03 Compliance with Trust
Indenture Act.............................. 66
9.04 Revocation and Effect
of Consents................................ 66
9.05 Notation on or
Exchange of Notes................................. 66
9.06 Trustee to Sign
Amendments, etc.................................. 66
ARTICLE X
SUBORDINATION
10.01 Agreement to
Subordinate......................................... 67
10.02 Liquidation; Dissolution;
Bankruptcy............................. 67
10.03 Default on Designated Senior
Debt................................ 67
10.04 Acceleration of
Securities....................................... 68
10.05 When Distribution Must Be
Paid Over.............................. 68
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10.06 Notice by
Company................................................
69
10.07
Subrogation......................................................
69
10.08 Relative
Rights..................................................
69
10.09 Subordination May Not Be
Impaired by Company..................... 69
10.10 Distribution or Notice to
Representative......................... 69
10.11 Rights of Trustee and Paying
Agent............................... 70
10.12 Authorization to Effect
Subordination............................ 70
10.13
Amendments.......................................................
70
ARTICLE XI
NOTE GUARANTEES
11.01
Guarantee........................................................
70
11.02 Subordination of Note
Guarantee.................................. 71
11.03 Limitation on Guarantor
Liability................................ 71
11.04 Execution and Delivery of
Note Guarantee......................... 72
11.05 Guarantors May Consolidate,
etc., on Certain Terms............... 72
11.06 Releases Following Sale of
Assets................................ 73
ARTICLE XII
SATISFACTION AND DISCHARGE
12.01 Satisfaction and
Discharge....................................... 73
12.02 Application of Trust
Money....................................... 74
ARTICLE XIII
MISCELLANEOUS
13.01 Trust Indenture Act
Controls..................................... 74
13.02
Notices..........................................................
75
13.03 Communication by Holders of
Notes with Other Holders of Notes.... 76
13.04 Certificate and Opinion as
to Conditions Precedent............... 76
13.05 Statements Required in
Certificate or Opinion.................... 76
13.06 Rules by Trustee and
Agents...................................... 76
13.07 No Personal Liability of
Directors, Officers, Employees and
Stockholders..................................................
77
13.08 Governing Law; Submission to
Jurisdiction........................ 77
13.09 No Adverse Interpretation of
Other Agreements.................... 77
13.10
Successors.......................................................
77
13.11
Severability.....................................................
77
13.12 Counterpart
Originals............................................ 77
13.13 Table of Contents, Headings,
etc................................. 78
</TABLE>
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EXHIBITS
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Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S
TEMPORARY GLOBAL NOTE
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Exhibit B FORM OF
CERTIFICATE OF TRANSFER
Exhibit C FORM OF
CERTIFICATE OF EXCHANGE
Exhibit D FORM OF
CERTIFICATE OF ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Exhibit E FORM OF NOTE
GUARANTEE
Exhibit F FORM OF
SUPPLEMENTAL INDENTURE
</TABLE>
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<PAGE>
INDENTURE dated
as of March 10, 2005 between WCI Communities, Inc., a
Delaware corporation (the "Company"), the
subsidiary guarantors listed on the
signature pages hereto (collectively, the
"Guarantors") and The Bank of New York
Trust Company, N.A., a national banking
association, as trustee (the "Trustee").
The Company, the
Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and
ratable benefit of the Holders of
the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
1.01 Definitions.
"144A Global
Note" means a global note substantially in the form of Exhibit
A-1 hereto bearing the Global Note Legend
and the Private Placement Legend and
deposited with or on behalf of, and
registered in the name of, the Depositary or
its nominee that will be issued in a
denomination equal to the outstanding
principal amount of the Notes sold in
reliance on Rule 144A.
"Acquired Debt"
means, with respect to any specified Person, (1)
Indebtedness of any other Person existing
at the time such other Person is
merged with or into or became a Subsidiary
of such specified Person whether or
not such Indebtedness is incurred in
connection with, or in contemplation of,
such other Person merging with or into, or
becoming a Subsidiary of, such
specified Person; and (2) Indebtedness
secured by a Lien encumbering any asset
acquired by such specified Person.
"Additional
Interest" means all additional interest then owing pursuant to
Section 5 of the Registration Rights
Agreement.
"Additional
Notes" means Notes, unlimited in aggregate principal amount
(other than the Initial Notes) issued under
this Indenture in accordance with
Sections 2.02 and 4.09 hereof, as part of
the same series as the Initial Notes.
"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"
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; provided that
beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to
be control. For purposes of this
definition, the terms "controlling,"
"controlled by" and "under common control
with" shall have correlative meanings.
Notwithstanding the foregoing, the term
"Affiliate" shall not include, with respect
to the Company or any Restricted
Subsidiary, any Restricted Subsidiary.
"Agent" means
any Registrar, Paying Agent or co-registrar.
"Amenities"
means the golf courses, marinas, clubhouses and swimming,
restaurants, tennis and other recreational
facilities owned and operated by the
Company or any Restricted Subsidiary and
all activities reasonably related
thereto.
<PAGE>
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"Applicable
Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global
Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that
apply to such transfer or exchange.
"Bankruptcy Law"
means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial
Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except
that in calculating the beneficial
ownership of any particular "person" (as
that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall
be deemed to have beneficial ownership
of all securities that such "person" has
the right to acquire by conversion or
exercise of other securities, whether such
right is currently exercisable or is
exercisable only upon the occurrence of a
subsequent condition. The terms
"Beneficially Owns" and "Beneficially
Owned" shall have a corresponding meaning.
"Board of
Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of
Directors.
"Borrowing Base"
means, at any time of determination, the sum of the
following, without duplication: (1) 100% of
all cash and Cash Equivalents held
by the Company or any Restricted
Subsidiary, including cash or Cash Equivalents
held by a title insurance company in trust
for the benefit of the Company or any
Restricted Subsidiary; (2) 75% of the book
value of Developed Land for which no
construction has occurred; (3) 95% of the
cost of the land and construction
costs (as reasonably allocated by the
Company) for all Units for which there is
an executed purchase contract with a buyer
not affiliated with the Company, less
any deposits, down payments or earnest
money; (4) 80% of the cost of the land
and construction costs (as reasonably
allocated by the Company) for all Units
for which construction has begun and for
which there is not an executed purchase
agreement with a buyer not affiliated with
the Company; (5) 75% of Receivables;
(6) 75% of the cost of Amenities less the
portion of such costs allocated on a
pro rata basis to sold memberships or
marina slips; (7) 50% of the costs of
Developable Land (other than Developed
Land) on which improvements have not
commenced, less CDD Obligations and
mortgage Indebtedness (other than under a
Credit Facility) applicable to such land,
up to the greater of $75.0 million or
30% of Consolidated Tangible Net Worth; and
(8) 65% of all Restricted
Investments up to the greater of $75.0
million or 2.5% of Total Assets.
"Broker-Dealer"
has the meaning set forth in the Registration Rights
Agreement.
"Business Day"
means any day other than a Legal Holiday.
"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 that time be required to be capitalized
on a balance sheet in accordance with
GAAP.
"Capital Stock"
means (1) in the case of a corporation, corporate stock,
(2) in the case of an association or
business entity, any and all shares,
interests, participations, rights or other
equivalents (however designated) of
corporate stock, (3) in the case of a
partnership or limited liability company,
partnership or membership interests
(whether general or limited), and (4) 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 (1) United States dollars, (2) securities
issued
or directly and fully guaranteed or insured
by the United States government or
any agency or instrumentality thereof
(provided that the full faith and credit
of the United States is pledged in support
thereof) having maturities of not
more than one year from the date of
acquisition, (3) certificates of deposit and
eurodollar time deposits with maturities of
one year or
<PAGE>
-3-
less from the date of acquisition, bankers'
acceptances with maturities not
exceeding one year and overnight bank
deposits, in each case with any domestic
commercial bank having capital and surplus
in excess of $500 million and rated
A-1 or better by Standard & Poor's
Rating Services or P-1 or better by Moody's
or the equivalent of such rating by a
successor rating agency, (4) repurchase
obligations with a term of not more than
seven days for underlying securities of
the types described in clauses (2) and (3)
above entered into with any financial
institution meeting the qualifications
specified in clause (3) above, (5)
commercial paper having the highest rating
obtainable from Moody's Investors
Service, Inc. or Standard & Poor's
Rating Services and in each case maturing
within one year after the date of
acquisition, and (6) money market funds at
least 95% of the assets of which constitute
Cash Equivalents of the kinds
described in clauses (1) through (5) of
this definition.
"CDD
Obligations" has the meaning set forth in clause (xi) of the
second
paragraph of Section 4.09 hereof, to the
extent that such obligation is
reflected as an obligation of the
consolidated balance sheet of the Company and
its Restricted Subsidiaries in accordance
with GAAP.
"Change of
Control" means the occurrence of any of the following: (1) the
direct or indirect sale, transfer,
conveyance or other disposition (other than
by way of merger or consolidation), in one
or a series of related transactions,
of all or substantially all of the
properties or assets of the Company and its
Restricted Subsidiaries taken as a whole to
any "person" (as that term is used
in Section 13(d)(3) of the Exchange Act or
any successor provision) other than a
Principal or a Related Party of a
Principal; provided that a transaction where
the Principals and/or Related Parties of a
Principal own directly or indirectly
50% or more of all classes of Capital Stock
of such Person or group immediately
after such transaction shall not be a
Change of Control; (2) the adoption of a
plan relating to the liquidation or
dissolution of the Company; (3) the
consummation of any transaction (including,
without limitation, any merger or
consolidation) the result of which is that
any "person" (as defined above),
other than the Principals and their Related
Parties, becomes the Beneficial
Owner, directly or indirectly, of more than
50% of the Voting Stock of the
Company (measured by voting power rather
than number of shares); or (4) the
first day on which a majority of the
members of the Board of Directors of the
Company are not Continuing Directors.
"Clearstream"
means ClearStream Bank S.A.
"Company" means
WCI Communities, Inc., and any and all successors thereto
and not to any of its Subsidiaries.
"Consolidated
Coverage Ratio" means with respect to any Person for any
period, the ratio of the EBITDA of such
Person and its Restricted Subsidiaries
for such period to the Consolidated
Interest Incurred of such Person and its
Restricted Subsidiaries for such period. In
the event that the referent Person
or any of its Restricted Subsidiaries
incurs, assumes, Guarantees, repays,
repurchases or redeems any Indebtedness
(other than ordinary working capital
borrowings) or issues, repurchases or
redeems preferred stock subsequent to the
commencement of the period for which the
Consolidated Coverage Ratio is being
calculated but prior to the date on which
the event for which the calculation of
the Consolidated Coverage Ratio is made
(the "Calculation Date"), then the
Consolidated Coverage Ratio shall be
calculated giving pro forma effect to such
incurrence, assumption, Guarantee,
repayment, repurchase or redemption of
Indebtedness, or such issuance, repurchase
or redemption of preferred stock, and
the use of proceeds therefrom as if the
same had occurred at the beginning of
the applicable four-quarter reference
period.
In addition, for
purposes of calculating the Consolidated Coverage Ratio,
(1) acquisitions that have been made by the
Company or any of its Restricted
Subsidiaries, including through mergers or
consolidations and including any
related financing transactions, during the
four-quarter reference period or
subsequent to such reference period and on
or prior to the Calculation Date
shall be given pro forma effect as if they
had occurred on the first day of the
four-quarter reference period and EBITDA
for such reference period shall be
calculated
<PAGE>
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without giving effect to clause (3) of the
proviso set forth in the definition
of Consolidated Net Income, and (2) the
EBITDA attributable to Discontinued
Operations, as determined in accordance
with GAAP, and operations or businesses
disposed of prior to the Calculation Date,
shall be excluded, and (3) the
Consolidated Interest Incurred attributable
to Discontinued Operations, as
determined in accordance with GAAP, and
operations or businesses disposed of
prior to the Calculation Date, shall be
excluded, but only to the extent that
the obligations giving rise to such
Consolidated Interest Incurred will not be
obligations of the referent Person or any
of its Restricted Subsidiaries
following the Calculation Date.
"Consolidated
Indebtedness" means the Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated
basis, calculated in accordance with
GAAP, including, without duplication, the
amount of all Guarantees, letters of
credit or other items of Indebtedness that
are reflected as liabilities on the
balance sheet of the Company and its
Restricted Subsidiaries, including Land
Bank Obligations reflected as liabilities
on the balance sheet of the Company
and its Restricted Subsidiaries excluding,
however, any amounts attributable to
surety and performance bonds.
"Consolidated
Interest Incurred" means, with respect to any Person for any
period, without duplication, (1) the
consolidated interest expense of such
Person and its Restricted Subsidiaries for
such period, whether paid or accrued
(including, without limitation,
amortization of debt issuance costs and original
issue discount, non-cash interest payments,
the interest component of any
deferred payment obligations, the interest
component of all payments associated
with Capital Lease Obligations,
commissions, discounts and other fees and
charges incurred in respect of letter of
credit or bankers' acceptance
financings, and net of the effect of all
payments made or received pursuant to
Hedging Obligations, but excluding
amortization of debt issuance costs paid on
or prior to the Issue Date), plus (2) the
consolidated interest of such Person
and its Restricted Subsidiaries, that was
capitalized during such period, plus
(3) any Consolidated Interest Incurred on
Indebtedness of another Person that is
Guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its
Restricted Subsidiaries (subject,
however, to the amount of the guarantee or
the value of the assets constituting
the Lien) (whether or not such Guarantee or
Lien is called upon), plus (4)
Consolidated Interest Incurred in
connection with Investments in Discontinued
Operations for such period; plus (5) the
product of (a) all dividends, whether
paid or accrued and whether or not in cash,
on any series of preferred stock of
such Person or any of its Restricted
Subsidiaries, other than dividends on
Equity Interests payable solely in Equity
Interests of the Company (other than
Disqualified Stock) or to the Company or a
Restricted Subsidiary of the Company,
times (b) a fraction, the numerator of
which is one and the denominator of which
is one minus the then current combined
federal, state and local statutory tax
rate of such Person, expressed as a
decimal, in each case, on a consolidated
basis and in accordance with GAAP; minus
(6) to the extent included above, the
amortization of previously capitalized
interest, minus (7) to the extent
included above, the amortization of debt
issuance costs paid on or prior to the
Issue 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, without duplication, (1) the
Net Income or net loss of any Person
that is not a Restricted Subsidiary 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 are received in
cash to the referent Person or a
Restricted Subsidiary during the referent
period or receivable (without legal or
contractual restrictions) or to the extent
such loss has been funded with cash
or other assets from the Company or a
Restricted Subsidiary during the referent
period, (2) the Net Income of any
Restricted Subsidiary shall be excluded to the
extent that the declaration or payment of
dividends or similar distributions by
that Restricted Subsidiary of 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, unless such restriction with
respect to the payments of dividends
or similar distributions has been waived
(and when and to the
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-5-
extent such dividend or other distribution
is permitted, such income not
previously recognized shall then be
recognized, in the period when such dividend
or other distribution was permitted and to
the extent of such permission for
purposes of calculation of Net Income under
Section 4.07 hereof but Net Income
from prior periods will not be included for
any other purpose), (3) the Net
Income or net loss of any Person acquired
in a pooling of interests transaction
for any period prior to the date of such
acquisition shall be excluded, (4) the
cumulative effect of a change in accounting
principles shall be excluded, and
(5) the Net Income and net loss of any
Unrestricted Subsidiary shall be
excluded, unless such Net Income shall be
distributed to the Company or one of
its Restricted Subsidiaries, in which case
such Net Income shall be included.
"Consolidated
Net Income After Grossed-up Preferred Stock Dividends" 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, without duplication,
(1) the Net Income or net loss of any
Person that is not a Restricted Subsidiary
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 are received in
cash to the referent Person or a Restricted
Subsidiary during the referent
period (regardless of whether such cash
represented Net Income in such period or
a prior period) or to the extent such loss
has been funded with cash or other
assets from the Company or a Restricted
Subsidiary during the referent period,
(2) the Net Income of any Restricted
Subsidiary shall be excluded to the extent
that the declaration or payment of
dividends or similar distributions by that
Restricted Subsidiary of 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, unless
such restriction with respect to the
payments of dividends or similar
distributions has been waived (and when and
to the extent such dividend or other
distribution is permitted, such income not
previously recognized shall then be
recognized, in the period when such
dividend or other distribution was permitted
and to the extent of such permission for
purposes of calculation of Net Income
under Section 4.07 hereof but Net Income
from prior periods will not be included
for any other purpose), (3) the Net Income
or net loss of any Person acquired in
a pooling of interests transaction for any
period prior to the date of such
acquisition shall be excluded, (4) the
cumulative effect of a change in
accounting principles shall be excluded,
(5) the Net Income and net loss of any
Unrestricted Subsidiary shall be excluded,
whether or not distributed to the
Company or one of its Restricted
Subsidiaries, and (6) the product of (a) all
dividends, whether paid or accrued and
whether or not in cash, on any series of
preferred stock or Disqualified Stock of
such Person or any of its Restricted
Subsidiaries, times (b) a fraction, the
numerator of which is one and the
denominator of which is one minus the then
current combined federal, state and
local statutory tax rate of such Person,
expressed as a decimal, in each case,
on a consolidated basis and in accordance
with GAAP shall be deducted.
"Consolidated
Tangible Assets" of the Company as of any date means the
total amount of assets of the Company and
its Restricted Subsidiaries (less
applicable reserves) on a consolidated
basis at the end of the fiscal quarter
immediately preceding such date, as
determined in accordance with GAAP, less (1)
Intangible Assets and (2) appropriate
adjustments on account of minority
interests of other Persons holding equity
investments in Restricted
Subsidiaries.
"Consolidated
Tangible Net Worth" means, with respect to any Person as of
any date, the sum of (1) the consolidated
equity of the common stockholders of
such Person and its consolidated Restricted
Subsidiaries as of such date, plus
(2) the respective amounts reported on such
Person's balance sheet as of such
date with respect to any series of
preferred stock (other than Disqualified
Stock) that by its terms is not entitled to
the payment of dividends unless such
dividends may be declared and paid only out
of net earnings in respect of the
year of such declaration and payment, but
only to the extent of any cash
received by such Person upon issuance of
such preferred stock, less (3) 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)
<PAGE>
-6-
subsequent to the date of this Indenture in
the book value of any asset owned by
such Person or a consolidated Restricted
Subsidiary of such Person, except to
the extent the write-up is a reversal of a
write-down or a previously recorded
reserve, less (4) all investments as of
such date in Unrestricted Subsidiaries
and in Persons that are not Subsidiaries
(except, in each case, Permitted
Investments, to the extent included in
calculating the consolidated equity in
clause (1)), less (5) Intangible Assets
reflected on the consolidated balance
sheet of such Person or a consolidated
Restricted Subsidiary of such Person, all
of the foregoing determined in accordance
with GAAP.
"Construction
Loan" means, a loan made for the purpose of financing the
construction and development of multifamily
residential condominium projects or
commercial real estate projects.
"Consultant"
means a natural person who is a consultant hired by the
Company or a Restricted Subsidiary to
perform services.
"Continuing
Directors" means, as of any date of determination, any member
of the Board of Directors of the Company
who: (1) was a member of such Board of
Directors on the date of this Indenture, or
(2) was nominated for election or
elected to such Board of Directors with the
approval of a majority of the
Continuing Directors who were members of
such Board of Directors at the time of
such nomination or election.
"Corporate Trust
Office" means the principal office of the Trustee at which
at any time its corporate trust business
shall be administered, which office at
the date hereof is located at 10161
Centurion Parkway, Jacksonville, Florida
32256, Attention: Corporate Trust
Administration, or such other address as the
Trustee may designate from time to time by
notice under Section 13.02, or the
principal corporate trust office of any
successor Trustee (or such other address
as a successor Trustee may designate from
time to time by notice under Section
13.02).
"Credit
Agreement" means that certain Credit Agreement, dated as of
August
13, 2004, by and among the Company, Bank of
America, N.A., and the other parties
named therein, providing for up to $750.0
million of borrowings, including any
related notes, guarantees, collateral
documents, instruments and agreements
executed in connection therewith, and in
each case as amended, modified,
renewed, refunded, replaced or refinanced
from time to time.
"Credit
Facilities" means one or more debt facilities (including,
without
limitation, the Credit Agreement) or
commercial paper facilities, in each case
with banks or other institutional lenders
providing for revolving credit loans,
term loans, receivables financing
(including through the sale of receivables to
such lenders or to special purpose entities
formed to borrow from such lenders
against such receivables) or letters of
credit, in each case, as amended,
restated, modified, renewed, refunded,
replaced or refinanced in whole or in
part from time to time (and whether or not
with the original lender or lenders
and whether provided under the original
Credit Facility or any other credit or
other agreement or indenture). Indebtedness
under Credit Facilities outstanding
on the date on which Notes are first issued
and authenticated under this
Indenture shall be deemed to have been
incurred on such date in reliance on the
exception provided by clause (i) of the
definition of Permitted Debt.
"Custodian"
means the Trustee, as custodian for the Depositary with respect
to the Notes in global form, or any
successor entity thereto.
"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.
"Definitive
Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance
with Section 2.06 hereof, substantially
in the form of Exhibit A-1 hereto except
that such Note shall
<PAGE>
-7-
not bear the Global Note Legend and shall
not have the "Schedule of Exchanges of
Interests in the Global Note" attached
thereto.
"Depositary"
means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person
specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and
any and all successors thereto
appointed as depositary hereunder and
having become such pursuant to the
applicable provision of this Indenture.
"Designated
Senior Debt" means (1) Indebtedness outstanding under the
Credit Agreement and (2) any other Senior
Debt of the Company permitted under
this Indenture the principal amount of
which is $25.0 million or more and that
has been designated by the Company as
"Designated Senior Debt."
"Developable
Land" means all land of the Company and its Restricted
Subsidiaries (a) on which Units may be
constructed or which may be utilized for
commercial, retail or industrial uses, in
each case, under applicable laws and
regulations and (b) the intended use by the
Company for which is permissible
under the applicable regional plan,
development agreement or applicable zoning
ordinance.
"Developed Land"
means all Developable Land of the Company and its
Restricted Subsidiaries which is undergoing
active development or is ready for
vertical construction.
"Discontinued
Operations" means with respect to the Company those
operations of the Company and its
Subsidiaries which were classified as
"discontinued operations" of the Company
and its Subsidiaries on a consolidated
basis in accordance with GAAP as of the
date of determination.
"Disqualified
Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is
convertible, or for which it is
exchangeable, in each case at the option of
the holder thereof), or upon the
happening of any event, 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 Notes mature; provided
that only the portion of Capital Stock
which so matures or is mandatorily
redeemable or redeemable at the option of the
holder thereof prior to such date will be
deemed to be Disqualified Stock;
provided that any Capital Stock that would
constitute Disqualified Stock solely
because the holders thereof have the right
to require the Company to repurchase
such Capital Stock upon the occurrence of a
Change of Control or an asset sale
shall not constitute Disqualified Stock if
the terms of such Capital Stock
provide that the Company may not repurchase
or redeem any such Capital Stock
pursuant to such provisions unless such
repurchase or redemption complies with
Section 4.07 hereof.
"EBITDA" means,
with respect to any Person for any period, the Consolidated
Net Income of such Person for such period
plus (1) provision for taxes based on
income or profits of such Person and its
Subsidiaries for such period, to the
extent that such provision for taxes was
deducted in computing such Consolidated
Net Income, plus (2) consolidated interest
expense of such Person and its
Subsidiaries for such period, whether paid
or accrued, whether expensed directly
or included as a component of cost of goods
sold or allocated to Joint Ventures
(including, without limitation,
amortization of debt issuance costs and original
issue discount, non-cash interest payments,
the interest component of any
deferred payment obligations, the interest
component of all payments associated
with Capital Lease Obligations,
commissions, discounts and other fees and
charges incurred in respect of letter of
credit or bankers' acceptance
financings, and net of the effect of all
payments made or received pursuant to
Hedging Obligations), to the extent that
any such expense was deducted in
computing such Consolidated Net Income,
plus (3) depreciation, amortization
(including amortization of goodwill and
other intangibles but excluding
amortization of prepaid cash expenses that
were paid in a prior period) and
other non-cash expenses (excluding any such
non-cash expense to the extent that
it represents an accrual of or reserve for
cash expenses in any future period or
amortization of a prepaid cash expense that
was paid in a prior period
<PAGE>
-8-
occurring after the date of this Indenture)
of such Person and its Subsidiaries
for such period to the extent that such
depreciation, amortization and other
non-cash expenses were deducted in
computing such Consolidated Net Income, minus
(4) non-cash items increasing such
Consolidated Net Income for such period,
other than the accrual of revenue in the
ordinary course of business, in each
case, on a consolidated basis and
determined in accordance with GAAP.
Notwithstanding
the preceding, the provision for taxes based on the income
or profits of, and the depreciation and
amortization and other non-cash expenses
of, a Subsidiary of the Company shall be
added to Consolidated Net Income to
compute EBITDA of the Company only to the
extent that a corresponding amount
would be permitted at the date of
determination to be dividended to the Company
by such Subsidiary without prior
governmental approval (that has not been
obtained), and without direct or indirect
restriction pursuant to the terms of
its charter and all agreements,
instruments, judgments, decrees, orders,
statutes, rules and governmental
regulations applicable to that Subsidiary or
its stockholders.
"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).
"Equity
Offerings" means any public or private sale of common stock or
preferred stock (excluding Disqualified
Stock).
"Euroclear"
means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear
system.
"Exchange Act"
means the Securities Exchange Act of 1934, as amended.
"Exchange Notes"
means the Series B Notes (as defined in the Registration
Rights Agreement) issued in the Exchange
Offer pursuant to Section 2.06(f)
hereof.
"Exchange Offer"
has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer
Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Excluded
Contributions" means the net cash proceeds received by the
Company after the Issue Date from (a)
contributions to its equity capital other
than contributions from the issuance of
Disqualified Stock or (b) the sale
(other than to a Restricted Subsidiary or
to any Company, Restricted Subsidiary
or parent company management equity plan or
stock option plan or any other
management or employee benefit plan or
agreement) of Capital Stock (other than
Disqualified Stock) of the Company, in each
case designated as Excluded
Contributions pursuant to an Officers'
Certificate executed by the principal
executive officer and the principal
financial officer of the Company on the date
such capital contributions are made or the
date such Equity Interests are sold,
as the case may be, the cash proceeds of
which are excluded from the calculation
set forth in paragraph (c) of Section 4.07
hereof.
"Existing
Indebtedness" means the aggregate principal amount of
Indebtedness of the Company and its
Restricted Subsidiaries (other than
Indebtedness under the Credit Agreement) in
existence on the date of the
Indenture.
"Existing
Indenture" means the Indenture, dated as of February 20, 2001,
by
and among the Company, the Trustee and the
guarantors named on the signature
pages thereto, as such Indenture may be
amended, modified or supplemented from
time to time.
<PAGE>
-9-
"Existing Notes"
means the Company's outstanding $350.0 million principal
amount of 10-5/8% Senior Subordinated Notes
due 2011, outstanding $200.0 million
principal amount of 9-1/8% Senior
Subordinated Notes due 2012, outstanding
$125.0 million principal amount of 4%
Contingent Convertible Senior Subordinated
Notes due 2023 and outstanding $125.0
million principal amount of 7-7/8% Senior
Subordinated Notes due 2013.
"Fair Market
Value" means, with respect to any property or assets, the fair
market value thereof, as established by a
responsible officer of the Company,
and, with respect to any property or asset
the fair market value of which
exceeds $5.0 million, by an independent
third party appraiser, accounting firm
or valuation firm with expertise in such
valuation that is not affiliated with
the Company or any Subsidiary of the
Company.
"GAAP" means
generally accepted accounting principles set forth in the
opinions and pronouncements of the
Accounting Principles Board of the American
Institute of Certified Public Accountants
and statements and pronouncements of
the Financial Accounting Standards Board or
in such other statements by such
other entity as have been approved by a
significant segment of the accounting
profession, which were in effect on April
24, 2002.
"Global Note
Legend" means the legend set forth in Section 2.06(g)(ii),
which is required to be placed on all
Global Notes issued under this Indenture.
"Global Notes"
means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global
Notes, substantially in the form of
Exhibit A hereto issued in accordance with
Section 2.01, 2.02, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Government
Securities" means direct obligations of, or obligations
guaranteed by, the United States of
America, and the payment for which the
United States pledges its full faith and
credit.
"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, by way of a pledge of
assets or through letters of credit or
reimbursement agreements in respect
thereof), of all or any part of any
Indebtedness.
"Guarantors"
means (1) each of the Company's Restricted Subsidiaries as of
the Issue Date that guarantees other
Indebtedness of the Company and (2) any
other Restricted Subsidiary that executes a
Note Guarantee in accordance with
the provisions of this Indenture, and their
respective successors and assigns.
"Hedging
Obligations" means, with respect to any Person, the obligations
of
such Person under (1) interest rate swap
agreements, interest rate cap
agreements and interest rate collar
agreements and (2) other agreements or
arrangements designed to protect such
Person against fluctuations in interest
rates.
"Holder" means a
Person in whose name a Note is registered.
"IAI Global
Note" means the global Note substantially in the form of
Exhibit A-1 hereto bearing the Global Note
Legend and the Private Placement
Legend and deposited with or on behalf of
and registered in the name of the
Depositary or its nominee that will be
issued in a denomination equal to the
outstanding principal amount of the Notes
sold to Institutional Accredited
Investors.
"Indebtedness"
means, with respect to any Person and without duplication,
any indebtedness of such Person, whether or
not contingent, in respect of
borrowed money or evidenced by bonds,
notes, debentures or similar instruments
or letters of credit (or reimbursement
agreements in respect thereof) or
banker's acceptances
<PAGE>
-10-
or representing Capital Lease Obligations
or the balance deferred and unpaid of
the purchase price of any property or
representing any Hedging Obligations, if
and to the extent any of the foregoing
(other than letters of credit and 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,
subject, however, to the Fair Market
Value of the assets securing such
Indebtedness (whether or not such Indebtedness
is assumed by such Person) and, to the
extent not otherwise included, the
Guarantee by such Person of any
indebtedness of any other Person; provided
Indebtedness shall not include Indebtedness
that constitutes an accrued expense,
trade payables, customer deposits or
deferred income taxes. The amount of any
Indebtedness outstanding as of any date
shall be (1) the accreted value thereof,
in the case of any Indebtedness issued with
original issue discount, and (2) the
principal amount thereof, together with any
interest thereon that is more than
30 days past due, in the case of any other
Indebtedness. Notwithstanding the
foregoing, Indebtedness shall not include:
(1) Indebtedness which has been
defeased or discharged, (2) Indebtedness
arising from the honoring by a bank or
other financial institution of a check,
draft or similar instrument drawn
against insufficient funds in the ordinary
course of business, provided that
such Indebtedness is extinguished within
five Business Days of its incurrence or
(3) CDD Obligations, other than that
portion of any CDD Obligations that is due
and payable at the time of
determination.
"Indenture"
means this Indenture, as amended or supplemented from time to
time.
"Independent
Member" means, with respect to any board of directors of a
company, a member who is not an officer or
employee of such company and is
otherwise "independent" as defined by the
New York Stock Exchange's listing
requirements and, in connection with any
transaction, a member of such board of
directors who is disinterested with respect
to such transaction.
"Indirect
Participant" means a Person who holds a beneficial interest in
a
Global Note through a Participant.
"Initial Notes"
means the first $200.0 million aggregate principal amount
of 6-5/8% Senior Subordinated Notes due
2015 issued under this Indenture on the
Issue Date.
"Institutional
Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Intangible
Assets" means all unamortized debt discount and expense,
unamortized deferred charges, goodwill,
patents, trademarks, service marks,
trade names, copyrights, write-ups of
assets over their carrying value at the
date of this Indenture or the date of
acquisition, if acquired subsequent
thereto, and all other items which would be
treated as intangibles on the
consolidated balance sheet of such Person
prepared in accordance with GAAP. For
purposes of this definition, deferred tax
assets shall not be deemed to be
Intangible Assets.
"Investment
Grade" means: (1) with respect to S&P, any of the rating
categories from and including AAA to and
including BBB-; and (2) with respect to
Moody's, any of the rating categories from
and including Aaa to and including
Baa3.
"Investments"
means, with respect to any Person, all direct or indirect
investments by such Person in other Persons
(including Affiliates) in the forms
of loans (including Guarantees or other
obligations), advances or capital
contributions (excluding commission, travel
loans and 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. If the Company
or any Restricted Subsidiary of the Company
sells or otherwise disposes of any
Equity Interests of any direct or indirect
Restricted Subsidiary of the Company
such that, after
<PAGE>
-11-
giving effect to any such sale or
disposition, such Person is no longer a
Restricted Subsidiary of the Company, the
Company shall be deemed to have made
an Investment on the date of any such sale
or disposition equal to the fair
market value of the Equity Interests of
such Subsidiary not sold or disposed of
in an amount determined as provided in the
third paragraph of Section 4.07
hereof. The acquisition by the Company or
any Restricted Subsidiary of the
Company of a Person that holds an
Investment in a third Person shall be deemed
to be an Investment by the Company or such
Restricted Subsidiary in such third
Person in an amount equal to the fair
market value of the Investment held by the
acquired Person in such third Person in an
amount determined as provided in the
third paragraph of Section 4.07 hereof.
Notwithstanding the foregoing, the
following are not Investments: (i) Hedging
Obligations entered into in the
ordinary course of business and in
compliance with this Indenture; (ii)
endorsements of negotiable instruments and
documents in the ordinary course of
business; and (iii) an acquisition of
assets, Capital Stock or other securities
by the Company for consideration consisting
exclusively of Equity Interests of
the Company (other than Disqualified Stock)
and which Equity Interests are
excluded from the calculation set forth in
Paragraph (c) of the first paragraph
of Section 4.07 hereof.
"Issue Date"
means March 10, 2005.
"Joint Venture"
means a corporation, partnership or other entity engaged in
one or more of the Permitted Businesses in
which the Company or its Restricted
Subsidiaries does not have control but
owns, directly or indirectly, at least
10% of the Equity Interests.
"Land Bank
Obligations" means all obligations of the Company and its
Restricted Subsidiaries reflected on its
balance sheet as a liability in
accordance with GAAP with respect to land
sold to a third party and as to which
the Company or any Restricted Subsidiary
has an option to repurchase.
"Legal Holiday"
means a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at
a place of payment are authorized by
law, regulation or executive order to
remain closed. If a payment date is a
Legal Holiday at a place of payment,
payment may be made at that place on the
next succeeding day that is not a Legal
Holiday, and no interest shall accrue on
such payment for the intervening
period.
"Letter of
Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the
Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means,
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
provided that in no event shall any
operating lease be deemed a Lien).
"Make-Whole
Amount" means, in connection with any optional redemption of
any Note, the excess, if any, of: (i) the
aggregate present value as of the date
of such redemption of each dollar of
principal being redeemed and the amount of
interest (exclusive of interest accrued to
the redemption date) that would have
been payable in respect of such dollar if
such prepayment had not been made,
determined by discounting, on a semi-annual
basis, such principal and interest
at the Treasury Rate (determined on the
Business Day preceding the date of such
redemption) plus 0.50%, from the respective
dates on which such principal and
interest would have been payable if such
payment had not been made; over (ii)
the principal amount of the Note being
redeemed.
"Moody's" means
Moody's Investors Service, Inc. and its successors.
<PAGE>
-12-
"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, without duplication,
(1) any gain or loss, together with any
related provision for taxes on such gain
or loss, realized in connection with the
disposition of any Restricted
Investment 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 (2) any extraordinary gain
(but not loss), together with any
related provision for taxes on such
extraordinary gain (but not loss).
"Non-Recourse
Financing" means Indebtedness incurred in connection with the
purchase, development or construction of
personal or real property useful in the
Permitted Business as to which the lender
upon default (1) may seek recourse or
payment against the Company or any
Restricted Subsidiary only through the return
or sale of the property so purchased and
(2) may not otherwise assert a valid
claim for payment on such Indebtedness
against the Company or any Restricted
Subsidiary or any other property of the
Company or any Restricted Subsidiary.
"Non-U.S.
Person" means a Person who is not a U.S. Person.
"Note Guarantee"
means the Guarantee by each Guarantor of the Company's
payment obligations under this Indenture
and on the Notes, executed pursuant to
the provisions of this Indenture.
"Notes" means
the Initial Notes, the Exchange Notes and the Additional
Notes, if any, permitted to be issued in
accordance with this Indenture.
"Obligations"
means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages
and other liabilities payable under
the documentation governing any
Indebtedness.
"Offering" means
the offering of the Notes by the Company.
"Officer" means,
with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the
Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such
Person.
"Officers'
Certificate" means a certificate signed by the Chief Executive
Officer, the President, the Chief Financial
Officer, any Vice President, the
Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of
the Company and delivered to the
Trustee.
"Opinion of
Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the
requirements of Section 13.05 hereof.
The counsel may be an employee of or
counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Participant"
means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account
with the Depositary, Euroclear or
Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and
Clearstream).
"Permitted
Business" means the business of the Company and its
Subsidiaries
engaged in as of the date of this
Indenture, including but not limited to,
planning, designing, engineering,
development, construction, marketing, sale,
financing, management and operation of real
estate including business and
commercial projects, office buildings,
residential subdivisions, condominiums
and cooperatives (including low-, mid- and
high-rise condominiums), villa
developments and single family residences,
timeshares, related amenity
operations, which include golf clubs,
marinas, tennis facilities, restaurants,
including leisure, hospitality (hotels) and
health care
<PAGE>
-13-
services, and any and all other businesses
reasonably related thereto including,
but not limited to, pest control and
security services. In addition, Permitted
Businesses shall include the operation of
an amenities business and other real
estate services businesses, including but
not limited to, title insurance,
property management, mortgage banking,
insurance brokerage, E-commerce related
businesses and real estate brokerage.
"Permitted
Investments" means: (1) any Investment in the Company or in a
Restricted Subsidiary of the Company; (2)
cash and any Investment in Cash
Equivalents; (3) any Investment by the
Company or any Restricted Subsidiary of
the Company in a Person, if as a result of
such Investment (a) such Person
becomes a Restricted Subsidiary of the
Company or (b) such Person is merged,
consolidated or amalgamated with or into,
or transfers or conveys substantially
all of its assets to, or is liquidated
into, the Company or a Restricted
Subsidiary of the Company; (4) any
acquisition of assets solely in exchange for
the issuance of Equity Interests (other
than Disqualified Stock) of the Company;
(5) stock, obligations or securities
received in settlement of debts created in
the ordinary course of business and owing
to the Company or any Restricted
Subsidiary or in satisfaction of judgments
or pursuant to any plan of
reorganization or similar arrangement upon
the bankruptcy or insolvency of a
debtor; (6) Investments in existence on the
Issue Date; (7) Investments made in
a simultaneous exchange for a prior
Permitted Investment; (8) the fair market
value of any investment in securities or
other assets not constituting cash or
Cash Equivalents received in connection
with the sale of assets (a) where the
securities are secured by a first priority
lien on the assets sold or (b) where
at least 25% of the consideration for such
sale consists of cash or Cash
Equivalents and provided that no more than
an aggregate amount of $10.0 million
of such securities may be outstanding at
any one time under this clause 8(b);
and (9) other Investments in an aggregate
amount not to exceed 2.5% of Total
Assets at any one time outstanding under
this clause (9).
"Permitted
Junior Securities" of a Person means (1) Equity Interests in
such Person and (2) debt securities of such
Person that are subordinated to all
Senior Debt (and any debt securities issued
in exchange for Senior Debt) of such
Person to substantially the same extent as,
or to a greater extent than, the
Notes are subordinated to Senior Debt of
the Company.
"Permitted
Refinancing Indebtedness" means any Indebtedness 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 or
refund other Indebtedness of the Company or
any of its Restricted Subsidiaries
(other than intercompany Indebtedness);
provided that: (1) the principal amount
(or accreted value, if applicable) of such
Permitted Refinancing Indebtedness
does not exceed the principal amount of (or
accreted value, if applicable), plus
accrued interest on, the Indebtedness so
extended, refinanced, renewed,
replaced, defeased or refunded (plus the
amount of reasonable expenses incurred
in connection therewith); unless such
excess would be permitted by Section 4.09
hereof; (2) such Permitted Refinancing
Indebtedness has a final maturity date
later than the final maturity date of, and
has a Weighted Average Life to
Maturity equal to or greater than the
Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced,
renewed, replaced, defeased or
refunded; (3) if the Indebtedness being
extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in
right of payment to the Notes, such
Permitted Refinancing Indebtedness has a
final maturity date later than the
final maturity date of the indebtedness
being extended, refinanced, renewed,
replaced, deferred or refunded, and is
subordinated in right of payment to the
Notes on terms at least as favorable to the
Holders of Notes as those contained
in the documentation governing the
Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
and (4) such Indebtedness is incurred
either by the Company or by the Subsidiary
who is the obligor on the
Indebtedness being extended, refinanced,
renewed, replaced, defeased or
refunded.
"Person" means
an individual, corporation, partnership, joint venture,
association, joint-stock company, limited
liability company, limited liability
partnership, trust, unincorporated
organization, or government or any agency or
political subdivision thereof.
"Principals"
means Alfred Hoffman, Jr., Don E. Ackerman or any of their
affiliates.
<PAGE>
-14-
"Private
Placement Legend" means the legend set forth in Section
2.06(g)(i)
to be placed on all Notes issued under this
Indenture except where otherwise
permitted by the provisions of this
Indenture.
"QIB" means a
"qualified institutional buyer" as defined in Rule 144A.
"Rating Agency"
means each of (1) S&P and (2) Moody's.
"Receivables"
means an amount owed with respect to completed sales of
housing units, lots, parcels and amenities
services sold to an unaffiliated
purchaser.
"Registration
Rights Agreement" means the Registration Rights Agreement,
dated as of March 10, 2005, by and among
the Company and the other parties named
on the signature pages thereof, as such
agreement may be amended, modified or
supplemented from time to time and, with
respect to any Additional Notes, one or
more registration rights agreements between
the Company and the other parties
thereto, as such agreement(s) may be
amended, modified or supplemented from time
to time, relating to rights given by the
Company to the purchasers of Additional
Notes to register such Additional Notes
under the Securities Act.
"Regulation S"
means Regulation S promulgated under the Securities Act.
"Regulation S
Global Note" means a global Note in the form of Exhibit A-1
hereto bearing the Global Note Legend and
the Private Placement Legend and
deposited with or on behalf of the
Depositary and registered in the name of the
Depositary or its nominee, issued in a
denomination equal to the outstanding
principal amount of the Notes initially
sold in reliance on Rule 903 of
Regulation S.
"Regulation S
Permanent Global Note" means a permanent global Note in the
form of Exhibit A-1 hereto bearing the
Global Note Legend and the Private
Placement Legend and deposited with or on
behalf of and registered in the name
of the Depositary or its nominee, issued in
a denomination equal to the
outstanding principal amount of the
Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S
Temporary Global Note" means a temporary global Note in the
form of Exhibit A-2 hereto bearing the
Private Placement Legend and deposited
with or on behalf of and registered in the
name of the Depositary or its
nominee, issued in a denomination equal to
the outstanding principal amount of
the Notes initially sold in reliance on
Rule 903 of Regulation S.
"Related Party"
with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned
Subsidiary, or spouse or immediate family
member (in the case of an individual) of
such Principal or (B) any trust,
corporation, partnership or other entity,
the beneficiaries, stockholders,
partners, owners or Persons beneficially
holding an 80% or more controlling
interest of which consist of such Principal
and/or such other Persons referred
to in the immediately preceding clause
(A).
"Representative"
means the Indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Responsible
Officer," means, 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 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.
<PAGE>
-15-
"Restricted
Definitive Note" means a Definitive Note bearing the Private
Placement Legend.
"Restricted
Global Note" means a Global Note bearing the Private Placement
Legend.
"Restricted
Investment" means an Investment other than a Permitted
Investment.
"Restricted
Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted
Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted
Subsidiary.
"Rule 144" means
Rule 144 promulgated under the Securities Act.
"Rule 144A"
means Rule 144A promulgated under the Securities Act.
"Rule 903" means
Rule 903 promulgated under the Securities Act.
"Rule 904" means
Rule 904 promulgated under the Securities Act.
"S&P" means
Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its
successors.
"SEC" means the
Securities and Exchange Commission.
"Securities Act"
means the Securities Act of 1933, as amended.
"Senior Debt" of
any Person means: (1) all Indebtedness of such Person
under Credit Facilities and all Hedging
Obligations with respect thereto, (2)
any other Indebtedness of such Person
permitted to be incurred under the terms
of this Indenture, unless the instrument
under which such Indebtedness is
incurred expressly provides that it is on a
parity with or subordinated in right
of payment to the Notes or the Note
Guarantees, as the case may be, and (3) all
Obligations with respect to the
foregoing.
Notwithstanding
anything to the contrary in the foregoing, Senior Debt will
not include: (a) any liability for federal,
state, local or other taxes owed or
owing by such Person, (b) any Indebtedness
of such Person to any of its
Subsidiaries or other Affiliates, (c) any
trade payables, customer deposits,
reserves and accrued expenses, (d) any
Indebtedness that is incurred in
violation of this Indenture, (e)
Indebtedness represented by the Notes, the
Guarantees, the Exchange Notes or
guarantees relating to the Exchange Notes, (f)
any CDD Obligations, other than that
portion of CDD Obligations that is due and
payable at the time of determination and
(g) the Existing Notes.
"Senior
Guarantee" means the Guarantees by the Guarantors of
Obligations
under the Credit Agreement or other Senior
Debt.
"Shelf
Registration Statement" means the Shelf Registration Statement
as
defined in the Registration Rights
Agreement.
"Significant
Subsidiary" means any Subsidiary 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 except that the standard of
significance will be 20% instead of 10%.
<PAGE>
-16-
"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.
"Subordinated
Indebtedness" means any Indebtedness which is expressly
subordinated in right of payment to any
other Indebtedness; provided that
Subordinated Indebtedness shall not include
debt which would otherwise be Senior
Debt but for a junior lien on assets of the
Company or any of its Subsidiaries.
"Subsidiary"
means, with respect to any Person, (1) 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
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 (2) 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 of one or more
Subsidiaries of such Person (or any
combination thereof, except in each case
with respect to joint ventures when such
Person or Subsidiary of such Person
does not exercise control of the joint
venture).
Notwithstanding
the foregoing, the term "Subsidiary" shall not include any
entity referred to in (1) or (2) above to
the extent the Company does not
consolidate its interest in any such entity
in its consolidated financial
statements prepared in accordance with
GAAP. Notwithstanding the immediately
preceding sentence, not-for-profit golf
clubs and common interest realty
associations that do not guarantee our
Credit Facilities are not Subsidiaries.
"TIA" means the
Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on
which this Indenture is qualified
under the TIA.
"Total Assets"
means, as of any date, the total consolidated assets of the
Company and its Restricted Subsidiaries, as
set forth on the Company's most
recently available internal consolidated
balance sheet as of such date.
"Treasury Rate"
means, in connection with the calculation of any Make-Whole
Amount with respect to any Note, the yield
to maturity at the time of
computation of United States Treasury
securities with a constant maturity, as
compiled by and published in the most
recent Federal Reserve Statistical Release
H.15 (519) that has become publicly
available at least two Business Days prior
to the redemption date (or, if such
Statistical Release is no longer published,
any publicly available source or similar
market data), equal to the then
remaining maturity of the Note being
prepaid. If no maturity exactly corresponds
to such maturity, yields for the published
maturities occurring prior to and
after such maturity most closely
corresponding to such maturity shall be
calculated pursuant to the immediately
preceding sentence and the Treasury Rate
shall be interpolated or extrapolated from
such yields on a straight-line basis,
rounding in each of such relevant periods
to the nearest month.
"Trustee" means
the party named as such above until a successor replaces it
in accordance with the applicable
provisions of this Indenture and thereafter
means the successor serving hereunder.
"U.S. Person"
means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Unit" means a
residence, whether single or part of a multifamily building,
whether completed or under construction,
held by the Company or any Restricted
Subsidiary for sale or rental in the
ordinary course of business; provided that
the number of Units that are rental Units
at the time of determination shall not
exceed 25%
<PAGE>
-17-
of the total Units sold or rented by the
Company and its Restricted Subsidiaries
during the immediately preceding twelve
month period.
"Unrestricted
Cash" means all cash of the Company and its Restricted
Subsidiaries which is not allocated for an
expenditure or distribution or held
as a deposit for a housing purchase
contract or otherwise characterized as a
deposit.
"Unrestricted
Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the
Private Placement Legend.
"Unrestricted
Global Note" means a permanent global Note substantially in
the form of Exhibit A-1 attached hereto
that bears the Global Note Legend and
that has the "Schedule of Exchanges of
Interests in the Global Note" attached
thereto, and that is deposited with or on
behalf of and registered in the name
of the Depositary, representing a series of
Notes that do not bear the Private
Placement Legend.
"Unrestricted
Subsidiary" means 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: (1) has no Indebtedness other
than debt that is non-recourse to the
Company or any Restricted Subsidiary,
except to the extent that any credit
support or guarantee by the Company or any
Restricted Subsidiary may be incurred
as Indebtedness; (2) 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; and (3) is a Person with respect
to which neither the Company nor any
of its Restricted Subsidiaries has any
direct or indirect obligation (a) to
subscribe for additional Equity Interests
or (b) to maintain or preserve such
Person's financial condition or to cause
such Person to achieve any specified
levels of operating results; unless the
maximum amount of such obligation is
treated as a Restricted Investment and such
Restricted Investment may be made at
the time of the giving of such
obligation.
"Valid Purchase
Contract Proceeds" means valid purchase contracts for
condominium units which produce proceeds
from sales (net of selling expenses and
contract deposits used for construction
costs).
"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.
"Weighted
Average Life to Maturity" means, when applied to any
Indebtedness
at any date, the number of years obtained
by dividing: (1) the sum of the
products obtained by multiplying (a) the
amount of each then remaining
installment, sinking fund, serial maturity
or other required payments of
principal, including payment at final
maturity, in respect thereof, by (b) the
number of years (calculated to the nearest
one-twelfth) that will elapse between
such date and the making of such payment,
by (2) the then outstanding principal
amount of such Indebtedness.
"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 or by such
Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
1.02 Other Definitions.
<PAGE>
-18-
<TABLE>
<CAPTION>
Defined in
Term
Section
----
----------
<S>
<C>
"Affiliate Transaction" ............
4.11
"Authentication Order" .............
2.02
"CDD Obligations" ..................
4.09
"Change of Control Offer" ..........
4.15
"Change of Control Payment" ........
4.15
"Change of Control Payment Date" ...
4.15
"Covenant Defeasance" ..............
8.03
"Event of Default" .................
6.01
"incur" ............................
4.09
"Investment Grade Rating Date" .....
4.10
"Legal Defeasance" .................
8.02
"Paying Agent" .....................
2.03
"Payment Blockage Notice" ..........
10.03
"Permitted Debt" ...................
4.09
"Registrar" ........................
2.03
"Restricted Payments" ..............
4.07
</TABLE>
1.03 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:
"indenture
securities" means the Notes;
"indenture
security Holder" means a Holder of a Note;
"indenture to be
qualified" means this Indenture;
"indenture
trustee" or "institutional trustee" means the Trustee; and
"obligor" on the
Notes and the Note Guarantees means the Company and the
Guarantors, respectively, and any successor
obligor upon the Notes and the Note
Guarantees, respectively.
All other terms
used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or
defined by SEC rule under the TIA have
the meanings so assigned to them.
1.04 Rules of Construction.
Unless the
context otherwise requires:
(a) a term has the meaning assigned to
it;
(b) an
accounting term not otherwise defined has the meaning assigned to
it
in accordance with GAAP;
(c) "or" is not exclusive;
<PAGE>
-19-
(d) words in the
singular include the plural, and in the plural include the
singular;
(e) provisions
apply to successive events and transactions; and
(f) references
to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement
of successor sections or rules adopted
by the SEC from time to time.
ARTICLE II
THE NOTES
2.01 Form and Dating.
(a) General. The
Notes and the Trustee's certificate of authentication
shall be substantially in the form of
Exhibit A-1 or A-2 hereto. The Notes may
have notations, legends or endorsements
required by law, stock exchange rule or
usage. Each Note shall be dated the date of
its authentication. The Notes shall
be in denominations of $1,000 and integral
multiples thereof.
The terms and
provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this
Indenture and the Company, the Guarantors
and the Trustee, by their execution and
delivery of this Indenture, expressly
agree to such terms and provisions and to
be bound thereby. However, to the
extent any provision of any Note conflicts
with the express provisions of this
Indenture, the provisions of this Indenture
shall govern and be controlling.
(b) Global
Notes. Notes issued in global form shall be substantially in
the
form of Exhibit Exhibits A-1 or A-2
attached hereto (including the Global Note
Legend thereon and the "Schedule of
Exchanges of Interests in the Global Note"
attached thereto). Notes issued in
definitive form shall be substantially in the
form of Exhibit A-1 attached hereto (but
without the Global Note Legend thereon
and without the "Schedule of Exchanges of
Interests in the Global Note" attached
thereto). Each Global Note shall represent
such of the outstanding Notes as
shall be specified therein and each shall
provide that it shall represent the
aggregate principal amount of outstanding
Notes from time to time endorsed
thereon and that the aggregate principal
amount of outstanding Notes represented
thereby may from time to time be reduced or
increased, as appropriate, to
reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect
the amount of any increase or decrease in
the aggregate principal amount of
outstanding Notes represented thereby shall
be made by the Trustee or the
Custodian, at the direction of the Trustee,
in accordance with instructions
given by the Holder thereof as required by
Section 2.06 hereof.
(c) Temporary Global
Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in
the form of the Regulation S Temporary
Global Note, which shall be deposited on
behalf of the purchasers of the Notes
represented thereby with the Trustee, at
its Corporate Trust Office, as
custodian for the Depositary, and
registered in the name of the Depositary or
the nominee of the Depositary, duly
executed by the Company and authenticated by
the Trustee as hereinafter provided. The
Restricted Period shall be terminated
upon the receipt by the Trustee of (i) a
written certificate from the
Depositary, together with copies of
certificates from Euroclear and Clearstream
certifying that they have received
certification of non-United States beneficial
ownership of 100% of the aggregate
principal amount of the Regulation S
Temporary Global Note (except to the extent
of any beneficial owners thereof who
acquired an interest therein during the
Restricted Period pursuant to another
exemption from registration under the
Securities Act and who will take delivery
of a beneficial ownership interest in a
144A Global Note or an IAI Global Note
bearing a Private Placement Legend, all
as
<PAGE>
-20-
contemplated by Section 2.06(a)(ii)
hereof), and (ii) an Officers' Certificate
from the Company. Following the termination
of the Restricted Period, beneficial
interests in the Regulation S Temporary
Global Note shall be exchanged for
beneficial interests in Regulation S
Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with
the authentication of Regulation S
Permanent Global Notes, the Trustee shall
cancel the Regulation S Temporary
Global Note. The aggregate principal amount
of the Regulation S Temporary Global
Note and the Regulation S Permanent Global
Notes may from time to time be
increased or decreased by adjustments made
on the records of the Trustee and the
Depositary or its nominee, as the case may
be, in connection with transfers of
interest as hereinafter provided.
2.02 Execution and Authentication.
An Officer shall
sign the Notes for the Company by manual or facsimile
signature.
If an Officer
whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not
be valid until authenticated by the manual signature of
the Trustee. The signature shall be
conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee
shall authenticate (i) Initial Notes for original issue in the
aggregate principal amount not to exceed
$200,000,000, (ii) Additional Notes and
(iii) Exchange Notes (x) in exchange for a
like principal amount of Initial
Notes or (y) in exchange for a like
principal amount of Additional Notes in each
case upon a written order of the Company in
the form of an Officers' Certificate
of the Company (an "Authentication Order").
Each such written order shall
specify the amount of Notes to be
authenticated and the date on which the Notes
are to be authenticated, whether the Notes
are to be Initial Notes, Exchange
Notes or Additional Notes and whether the
Notes are to be issued as certificated
Notes or Global Notes or such other
information as the Trustee may reasonably
request. In addition, with respect to
authentication pursuant to clauses (ii) or
(iii) of the first sentence of this
paragraph, the first such written order from
the Company shall be accompanied by an
Opinion of Counsel of the Company in a
form reasonably satisfactory to the
Trustee.
The Trustee may
appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating
agent may authenticate Notes whenever
the Trustee may do so. Each reference in
this Indenture to authentication by the
Trustee includes authentication by such
agent. An authenticating agent has the
same rights as an Agent to deal with
Holders or the Company.
The Trustee
shall have the right to decline to authenticate and deliver any
Notes under this Indenture if the Trustee,
being advised by counsel, determines
that such action may not lawfully be taken
or if the Trustee in good faith shall
determine that such action would expose the
Trustee to personal liability.
2.03 Registrar and Paying Agent.
The Company shall maintain an
office or agency where Notes may be presented
for registration of transfer or for
exchange ("Registrar") and an office or
agency where Notes may be presented for
payment ("Paying Agent"). The Registrar
shall keep a register of the Notes and of
their transfer and exchange. The
Company may appoint one or more
co-registrars and one or more additional paying
agents. The term "Registrar" includes any
co-registrar and the term "Paying
Agent" includes any additional paying
agent. The Company may change any Paying
Agent or Registrar without notice to any
Holder. The Company shall notify the
Trustee in writing of the name and address
of any Agent not a party to this
Indenture. If the Company fails to appoint
or maintain another entity as
Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or
Registrar.
<PAGE>
-21-
The Company
initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global
Notes.
The Company
initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with
respect to the Global Notes.
2.04 Paying Agent to Hold Money in
Trust.
The Company shall require
each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold
in trust for the benefit of Holders
or the Trustee all money held by the Paying
Agent for the payment of principal,
premium or Additional Interest, if any, or
interest on the Notes, and will
notify the Trustee of any default by the
Company in making any such payment.
While any such default continues, the
Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The
Company at any time may require a
Paying Agent to pay all money held by it to
the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall
have no further liability for the money. If
the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold
in a separate trust fund for the
benefit of the Holders all money held by it
as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to
the Company, the Trustee shall serve
as Paying Agent for the Notes.
2.05 Holder Lists.
The Trustee
shall preserve in as current a form as is reasonably
practicable the most recent list available
to it of the names and addresses of
all Holders and shall otherwise comply with
TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall
furnish to the Trustee at least seven
Business Days before each interest payment
date and at such other times as the
Trustee may request in writing, a list in
such form and as of such date as the
Trustee may reasonably require of the names
and addresses of the Holders of
Notes and the Company shall otherwise
comply with TIA Section 312(a).
2.06 Transfer and Exchange.
(a) Transfer and
Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the
Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the
Depositary or to another nominee of the
Depositary, or by the Depositary or any
such nominee to a successor Depositary
or a nominee of such successor Depositary.
All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the
Company delivers to the Trustee
notice from the Depositary that it is
unwilling or unable to continue to act as
Depositary or that it is no longer a
clearing agency registered under the
Exchange Act and, in either case, a
successor Depositary is not appointed by the
Company within 120 days after the date of
such notice from the Depositary or
(ii) the Company in its sole discretion
determines that the Global Notes (in
whole but not in part) should be exchanged
for Definitive Notes and delivers a
written notice to such effect to the
Trustee; provided that in no event shall
the Regulation S Temporary Global Note be
exchanged by the Company for
Definitive Notes prior to (x) the
expiration of the Restricted Period and (y)
the receipt by the Registrar of any
certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act.
Upon the occurrence of either of the
preceding events in (i) or (ii) above,
Definitive Notes shall be issued in such
names as the Depositary shall instruct the
Trustee. Global Notes also may be
exchanged or replaced, in whole or in part,
as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu
of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form
of, and shall be, a Global Note. A Global
Note may not be exchanged for another
Note other than as provided in this Section
2.06(a), however, beneficial
interests in a Global Note may be
transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
<PAGE>
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(b) Transfer and
Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial
interests in the Global Notes shall be
effected through the Depositary, in
accordance with the provisions of this
Indenture and the Applicable Procedures.
Beneficial interests in the Restricted
Global Notes shall be subject to
restrictions on transfer comparable to those
set forth herein to the extent required by
the Securities Act. Transfers of
beneficial interests in the Global Notes
also shall require compliance with
either subparagraph (i) or (ii) below, as
applicable, as well as one or more of
the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial
interests in any Restricted Global Note may be transferred to
Persons who take
delivery thereof in the form of a beneficial interest in
the same
Restricted Global Note in accordance with the transfer
restrictions set
forth in the Private Placement Legend; provided that prior
to the
expiration of the Restricted Period, transfers of beneficial
interests in the
Temporary Regulation S Global Note may not be made to a
U.S. Person or
for the account or benefit of a U.S. Person (other than an
Initial
Purchaser). Beneficial interests in any Unrestricted Global
Note
may be
transferred to Persons who take delivery thereof in the form of
a
beneficial
interest in an Unrestricted Global Note. No written orders or
instructions
shall be required to be delivered to the Registrar to effect
the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in
Global Notes. In
connection with all transfers and exchanges of beneficial
interests that
are not subject to Section 2.06(b)(i) above, the transferor
of such
beneficial interest must deliver to the Registrar either (A) (1)
a
written order
from a Participant or an Indirect Participant given to the
Depositary in
accordance with the Applicable Procedures directing the
Depositary to
credit or cause to be credited a beneficial interest in
another Global
Note in an amount equal to the beneficial interest to be
transferred or
exchanged and (2) instructions given in accordance with the
Applicable
Procedures containing information regarding the Participant
account to be
credited with such increase or (B) (1) a written order from a
Participant or
an Indirect Participant given to the Depositary in
accordance with
the Applicable Procedures directing the Depositary to cause
to be issued a
Definitive Note in an amount equal to the beneficial
interest to be
transferred or exchanged and (2) instructions given by the
Depositary to
the Registrar containing information regarding the Person in
whose name such
Definitive Note shall be registered to effect the transfer
or exchange
referred to in (1) above; provided that in no event shall
Definitive Notes
be issued upon the transfer or exchange of beneficial
interests in the
Regulation S Temporary Global Note prior to (x) the
expiration of
the Restricted Period and (y) the receipt by the Registrar of
any certificates
required pursuant to Rule 903 under the Securities Act.
Upon consummation of
an Exchange Offer by the Company in accordance with
Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(ii) shall
be deemed to
have been satisfied upon receipt by the Registrar of the
instructions
contained in the Letter of Transmittal delivered by the Holder
of such
beneficial interests in the Restricted Global Notes. Upon
satisfaction of
all of the requirements for transfer or exchange of
beneficial
interests in Global Notes contained in this Indenture and the
Notes or
otherwise applicable under the Securities Act, the Trustee
shall
adjust the
principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h)
hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global Note
to
Another
Restricted Global Note. A beneficial interest in any Restricted
Global Note may
be transferred to a Person who takes delivery thereof in
the form of a
beneficial interest in another Restricted Global Note if the
transfer
complies with the requirements of Section 2.06(b)(ii) above and
the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must
deliver a certificate in the form of Exhibit B hereto, including
the
certifications in item (1) thereof;
<PAGE>
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(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Note or
the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor
must
deliver a certificate in the form of Exhibit B hereto, including
the
certifications and certificates and Opinion of Counsel required
by
item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted
Global Note for
Beneficial Interests in the Unrestricted Global Note. A
beneficial
interest in any Restricted Global Note may be exchanged by any
holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a
Person who takes delivery thereof in the form of a
beneficial
interest in an Unrestricted Global Note if the exchange or
transfer
complies with the requirements of Section 2.06(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the holder of the beneficial interest to be transferred, in
the
case of an exchange, or the transferee, in the case of a
transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a
broker-dealer, (2) a Person participating in the distribution of
the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so require,
an
Opinion of Counsel in form reasonably acceptable to the Registrar
to
the effect that such exchange or transfer is in compliance with
the
Securities Act and that the restrictions on transfer contained
herein
and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
<PAGE>
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If any such
transfer is effected pursuant to subparagraph (B) or (D)
above at a time
when an Unrestricted Global Note has not yet been issued,
the Company
shall issue and, upon receipt of an Authentication Order in
accordance with
Section 2.02 hereof, the Trustee shall authenticate one or
more
Unrestricted Global Notes in an aggregate principal amount equal
to
the aggregate
principal amount of beneficial interests transferred pursuant
to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for,
or transferred to Persons who take delivery thereof in the
form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or
Exchange of Beneficial Interest in Global Notes for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted
Definitive
Notes. If any holder of a beneficial interest in a Restricted
Global Note
proposes to exchange such beneficial interest for a Restricted
Definitive Note
or to transfer such beneficial interest to a Person who
takes delivery
thereof in the form of a Restricted Definitive Note, then,
upon receipt by
the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form
of Exhibit C hereto, including the certifications in item
(2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB
in
accordance with Rule 144A under the Securities Act, a certificate
to
the effect set forth in Exhibit B hereto, including the
certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903
or Rule 904 under the Securities Act, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item
(2)
thereof;
(D) if such beneficial interest is being transferred pursuant
to
an exemption from the registration requirements of the Securities
Act
in accordance with Rule 144 under the Securities Act, a certificate
to
the effect set forth in Exhibit B hereto, including the
certifications
in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the
registration requirements of the Securities Act other than
those
listed in subparagraphs (B) through (D) above, a certificate to
the
effect set forth in Exhibit B hereto, including the
certifications,
certificates and Opinion of Counsel required by item (3) thereof,
if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item
(3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant
to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the
certifications in item (3)(c) thereof,
the Trustee
shall cause the aggregate principal amount of the applicable
Global Note to
be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company
shall execute and the Trustee shall
<PAGE>
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authenticate and
deliver to the Person designated in the instructions a
Definitive Note
in the appropriate principal amount. Any Definitive Note
issued in
exchange for a beneficial interest in a Restricted Global Note
pursuant to this
Section 2.06(c) shall be registered in such name or names
and in such
authorized denomination or denominations as the holder of such
beneficial
interest shall instruct the Registrar through instructions from
the Depositary
and the Participant or Indirect Participant. The Trustee
shall deliver
such Definitive Notes to the Persons in whose names such
Notes are so
registered. Any Definitive Note issued in exchange for a
beneficial
interest in a Restricted Global Note pursuant to this Section
2.06(c)(i) shall
bear the Private Placement Legend and shall be subject to
all restrictions
on transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global Note
to
Definitive
Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial
interest in the Regulation S Temporary Global Note may not be
exchanged for a
Definitive Note or transferred to a Person who takes
delivery thereof
in the form of a Definitive Note prior to (x) the
expiration of
the Restricted Period and (y) the receipt by the Registrar of
any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act,
except in the case of a transfer pursuant to an exemption
from the
registration requirements of the Securities Act other than Rule
903 or Rule
904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted
Definitive
Notes. A holder of a beneficial interest in a Restricted Global
Note may
exchange such beneficial interest for an Unrestricted
Definitive
Note or may
transfer such beneficial interest to a Person who takes
delivery thereof
in the form of an Unrestricted Definitive Note only if:
(A) such
exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies
in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form
of a Definitive Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
<PAGE>
-26-
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so require,
an
Opinion of Counsel in form reasonably acceptable to the Registrar
to
the effect that such exchange or transfer is in compliance with
the
Securities Act and that the restrictions on transfer contained
herein
and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted
Definitive
Notes. If any holder of a beneficial interest in an
Unrestricted
Global Note
proposes to exchange such beneficial interest for a Definitive
Note or to
transfer such beneficial interest to a Person who takes
delivery
thereof in the
form of a Definitive Note, then, upon satisfaction of the
conditions set
forth in Section 2.06(b)(ii) hereof, the Trustee shall cause
the aggregate
principal amount of the applicable Global Note to be reduced
accordingly
pursuant to Section 2.06(h) hereof, and the Company shall
execute and the
Trustee shall authenticate and deliver to the Person
designated in
the instructions a Definitive Note in the appropriate
principal
amount. Any Definitive Note issued in exchange for a beneficial
interest
pursuant to this Section 2.06(c)(iv) shall be registered in
such
name or names
and in such authorized denomination or denominations as the
holder of such
beneficial interest shall instruct the Registrar through
instructions
from the Depositary and the Participant or Indirect
Participant. The
Trustee shall deliver such Definitive Notes to the Persons
in whose names
such Notes are so registered. Any Definitive Note issued in
exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv)
shall not bear
the Private Placement Legend.
(d) Transfer and
Exchange of Definitive Notes for Beneficial Interests in
Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted
Global Notes. If
any Holder of a Restricted Definitive Note proposes to
exchange such
Note for a beneficial interest in a Restricted Global Note or
to transfer such
Restricted Definitive Notes to a Person who takes delivery
thereof in the
form of a beneficial interest in a Restricted Global Note,
then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to
exchange such Note for a beneficial interest in a Restricted
Global
Note, a certificate from such Holder in the form of Exhibit C
hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to
a
Non-U.S. Person in an offshore transaction in accordance with Rule
903
or Rule 904 under the Securities Act, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item
(2)
thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of
the
Securities Act in accordance with Rule 144 under the Securities
Act, a
certificate to the effect set forth in Exhibit B hereto, including
the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an
Institutional Accredited Investor in reliance on an exemption from
the
registration requirements of the Securities Act other than
those
listed in subparagraphs (B) through (D) above, a certificate to
the
<PAGE>
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effect set forth in Exhibit B hereto, including the
certifications,
certificates and Opinion of Counsel required by item (3) thereof,
if
applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect
set forth in Exhibit B hereto, including the certifications in
item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee
shall cancel the Restricted Definitive Note, increase or cause
to be increased
the aggregate principal amount of, in the case of clause
(A) above, the
appropriate Restricted Global Note, in the case of clause
(B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S
Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may
exchange such
Note for a beneficial interest in an Unrestricted Global Note
or transfer such
Restricted Definitive Note to a Person who takes delivery
thereof in the
form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the Holder, in the case of an exchange, or the transferee, in
the
case of a transfer, certifies in the applicable Letter of
Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in
the
distribution of the Exchange Notes or (3) a Person who is an
affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the
Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted
Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so require,
an
Opinion of Counsel in form reasonably acceptable to the Registrar
to
the effect that such exchange or transfer is in compliance with
the
Securities Act and that the restrictions on transfer contained
herein
and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
<PAGE>
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Upon satisfaction of the conditions of any of the subparagraphs
in
this Section
2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or
cause to be increased the aggregate principal amount of the
Unrestricted
Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted
Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such
Note for a beneficial interest in an Unrestricted Global Note
or transfer such
Definitive Notes to a Person who takes delivery thereof in
the form of a
beneficial interest in an Unrestricted Global Note at any
time. Upon
receipt of a request for such an exchange or transfer, the
Trustee shall
cancel the applicable Unrestricted Definitive Note and
increase or
cause to be increased the aggregate principal amount of one of
the Unrestricted
Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above
at a time when an Unrestricted Global Note has not yet been
issued, the
Company shall issue and, upon receipt of an Authentication
Order in
accordance with Section 2.02 hereof, the Trustee shall
authenticate one
or more Unrestricted Global Notes in an aggregate
principal amount
equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and
Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and
such Holder's compliance with the
provisions of this Section 2.06(e), the
Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such
registration of transfer or
exchange, the requesting Holder shall
present or surrender to the Registrar the
Definitive Notes duly endorsed or
accompanied by a written instruction of
transfer in form satisfactory to the
Registrar duly executed by such Holder or
by its attorney, duly authorized in
writing. In addition, the requesting Holder
shall provide any additional
certifications, documents and information, as
applicable, required pursuant to the
following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any
Restricted
Definitive Note may be transferred to and registered in the
name
of Persons who
take delivery thereof in the form of a Restricted Definitive
Note if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the
Securities Act, then the transferor must deliver a certificate in
the
form
of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form
of
Exhibit B hereto, including the certifications in item (2)
thereof;
and
(C) if the transfer will be made pursuant to any other
exemption
from the registration requirements of the Securities Act, then
the
transferor must deliver a certificate in the form of Exhibit B
hereto,
including the certifications, certificates and Opinion of
Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any
Restricted
Definitive Note may be exchanged by the Holder thereof for an
Unrestricted
Definitive Note or transferred to a Person or Persons who take
delivery thereof
in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights
Agreement
and the Holder, in the case of an exchange, or the transferee, in
the
case of a transfer, certifies in the applicable Letter of
Transmittal
that it
<PAGE>
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is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant
to
the Exchange Offer Registration Statement in accordance with
the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note,
a certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer
is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are
no
longer required in order to maintain compliance with the
Securities
Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes.
A Holder of
Unrestricted Definitive Notes may transfer such Notes to a
Person who takes
delivery thereof in the form of an Unrestricted Definitive
Note. Upon
receipt of a request to register such a transfer, the Registrar
shall register
the Unrestricted Definitive Notes pursuant to the
instructions
from the Holder thereof.
(f) Exchange
Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the
Company shall issue and, upon
receipt of an Authentication Order in
accordance with Section 2.02, the Trustee
shall authenticate (i) one or more
Unrestricted Global Notes in an aggregate
principal amount equal to the principal
amount of the beneficial interests in
the Restricted Global Notes tendered for
acceptance by Persons that certify in
the applicable Letters of Transmittal that
(x) they are not broker-dealers, (y)
they are not participating in a
distribution of the Exchange Notes and (z) they
are not affiliates (as defined in Rule 144)
of the Company, and accepted for
exchange in the Exchange Offer and (ii)
Definitive Notes in an aggregate
principal amount equal to the principal
amount of the Restricted Definitive
Notes accepted for exchange in the Exchange
Offer. Concurrently with the
issuance of such Notes, the Trustee shall
cause the aggregate principal amount
of the applicable Restricted Global Notes
to be reduced accordingly, and the
Company shall execute and the Trustee shall
authenticate and deliver to the
Persons designated by the Holders of
Definitive Notes so accepted Definitive
Notes in the appropriate principal
amount.
(g) Legends. The
following legends shall appear on the face of all Global
Notes and Definitive Notes issued under
this Indenture unless specifically
stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend.
<PAGE>
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(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE NOTE
EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501
(a) (1), (2), (3) or (7) UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE FOR
THIS SECURITY), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY
SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES
ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive
Note issued pursuant to subparagraphs (c)(iii), (c)(iv),
(d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all
Notes
issued in exchange therefor or substitution thereof) shall not
bear
the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in
substantially
the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THIS INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THIS INDENTURE,
(II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THIS
INDENTURE, (III) THIS
<PAGE>
-31-
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THIS INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend. The Regulation
S
Temporary Global
Note shall bear a legend in substantially the following
form:
"THE RIGHTS ATTACHING TO THIS REGULATION S
TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THIS INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation
and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global
Note have been exchanged for
Definitive Notes or a particular Global
Note has been redeemed, repurchased or
canceled in whole and not in part, each
such Global Note shall be returned to or
retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any
beneficial interest in a Global Note
is exchanged for or transferred to a Person
who will take delivery thereof in
the form of a beneficial interest in
another Global Note or for Definitive
Notes, the principal amount of Notes
represented by such Global Note shall be
reduced accordingly and an endorsement
shall be made on such Global Note by the
Trustee or by the Depositary at the
direction of the Trustee to reflect such
reduction; and if the beneficial interest
is being exchanged for or transferred
to a Person who will take delivery thereof
in the form of a beneficial interest
in another Global Note, such other Global
Note shall be increased accordingly
and an endorsement shall be made on such
Global Note by the Trustee or by the
Depositary at the direction of the Trustee
to reflect such increase.
(i) General
Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company
shall execute
and the Trustee shall authenticate Global Notes and
Definitive Notes
upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial
interest in a
Global Note or to a Holder of a Definitive Note for any
registration of
transfer or exchange, but the Company may require payment
of a sum
sufficient to cover any transfer tax or similar governmental
charge payable
in connection therewith (other than any such transfer taxes
or similar
governmental charge payable upon exchange or transfer pursuant
to Sections
2.10, 3.06, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of
or exchange any
Note selected for redemption in whole or in part, except
the unredeemed
portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of
transfer or exchange of Global Notes or Definitive Notes
shall be the
valid obligations of the Company, evidencing the same debt,
and entitled to
the same benefits under this Indenture, as the Global Notes
or Definitive
Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to register
the
transfer of or
to exchange any Notes during a period beginning at the
opening of
business 15 days before the day of any selection of Notes for
redemption under
Section 3.02 hereof and ending at the close of business on
the
<PAGE>
-32-
day of
selection, (B) to register the transfer of or to exchange any
Note
so selected for
redemption in whole or in part, except the unredeemed
portion of any
Note being redeemed in part or (C) to register the transfer
of or to
exchange a Note between a record date and the next succeeding
Interest Payment
Date.
(vi) Prior to due presentment for the registration of a transfer
of
any Note, the
Trustee, any Agent and the Company may deem and treat the
Person in whose
name any Note is registered as the absolute owner of such
Note for the
purpose of receiving payment of principal of and interest on
such Notes and
for all other purposes, and none of the Trustee, any Agent
or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes
in accordance
with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be
submitted to the Registrar pursuant to this Section 2.06 to
effect a
registration of transfer or exchange may be submitted by
facsimile.
(ix) Each Holder agrees to indemnify the Company and the
Trustee
against any
liability that may result from the transfer, exchange or
assignment by
such Holder of such Holder's Note in violation of any
provision of
this Indenture and/or applicable Unites States Federal or
state securities
law.
(x) The Trustee shall have no obligation or duty to monitor,
determine
or inquire as to
compliance with any restrictions on transfer imposed under
this Indenture
or under applicable law with respect to any transfer of any
interest in any
Note (including any transfers between or among Depositary
Participants or
beneficial owners of interests in any Global Note) other
than to require
delivery of such certificates and other documentation or
evidence as are
expressly required by, and to do so if and when expressly
required by the
terms of, this Indenture, and to examine the same to
determine
substantial compliance as to form with the express requirements
hereof.
2.07 Replacement Notes.
If any mutilated
Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its
satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and
the Trustee, upon receipt of an
Authentication Order, shall authenticate a
replacement Note if the Trustee's
requirements are met. An indemnity bond
must be supplied by the Holder that is
sufficient in the judgment of the Trustee
and the Company to protect the
Company, the Trustee, any Agent and any
authenticating agent from any loss that
any of them may suffer if a Note is
replaced. The Company may charge for its
expenses in replacing a Note.
Every
replacement Note is an additional obligation of the Company and
shall
be entitled to all of the benefits of this
Indenture equally and proportionately
with all other Notes duly issued
hereunder.
2.08 Outstanding Notes.
The Notes
outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it,
those delivered to it for cancellation,
those reductions in the interest in a
Global Note effected by the Trustee in
accordance with the provisions hereof, and
those described in this Section as
not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not
cease to be outstanding because the Company
or an Affiliate of the Company holds
the Note; however, Notes held by the
Company or a Subsidiary of the Company
shall not be deemed to be outstanding for
purposes of Section 3.07(b) hereof.
<PAGE>
-33-
If a Note is
replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives
proof satisfactory to it that the
replaced Note is held by a bona fide
purchaser.
If the principal
amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying
Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date
or maturity date, money sufficient
to pay Notes payable on that date, then on
and after that date such Notes shall
be deemed to be no longer outstanding and
shall cease to accrue interest.
2.09 Treasury Notes.
In determining
whether the Holders of the required principal amount of
Notes have concurred in any direction,
waiver or consent, Notes owned by the
Company, or by any Person directly or
indirectly controlling or controlled by or
under direct or indirect common control
with the Company, shall be considered as
though not outstanding, except that for the
purposes of determining whether the
Trustee shall be protected in relying on
any such direction, waiver or consent,
only Notes as to which a Responsible
Officer of the Trustee has actual knowledge
are so owned shall be so disregarded.
2.10 Temporary Notes.
Until
certificates representing Notes are ready for delivery, the
Company
may prepare and the Trustee, upon receipt
of an Authentication Order, shall
authenticate temporary Notes. Temporary
Notes shall be substantially in the form
of certificated Notes but may have
variations that the Company considers
appropriate for temporary Notes and as
shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee
shall authenticate definitive Notes in
exchange for temporary Notes.
Holders of
temporary Notes shall be entitled to all of the benefits of
this
Indenture.
2.11 Cancellation.
The Company at
any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall
forward to the Trustee any Notes
surrendered to them for registration of
transfer, exchange or payment. The
Trustee and no one else shall cancel all
Notes surrendered for registration of
transfer, exchange, payment, replacement or
cancellation and shall dispose of
canceled Notes in accordance with its
procedures for the disposition of canceled
securities in effect as of the date of such
disposition (subject to the record
retention requirement of the Exchange Act).
Certification of the disposition of
all canceled Notes shall be delivered to
the Company. The Company may not issue
new Notes to replace Notes that it has paid
or that have been delivered to the
Trustee for cancellation.
2.12 Defaulted Interest.
If the Company
defaults in a payment of interest on the Notes, it shall pay
the defaulted interest in any lawful manner
plus, to the extent lawful, interest
payable on the defaulted interest, to the
Persons who are Holders on a
subsequent special record date, in each
case at the rate provided in the Notes
and in Section 4.01 hereof. The Company
shall notify the Trustee in writing of
the amount of defaulted interest proposed
to be paid on each Note and the date
of the proposed payment. The Company shall
fix or cause to be fixed each such
special record date and payment date,
provided that no such special record date
shall be less than 10 days prior to the
related payment date for such defaulted
interest. At least 15 days before the
special record date, the Company (or, upon
the written request of the Company, the
Trustee in the name and at the expense
of the Company) shall mail
<PAGE>
-34-
or cause to be mailed to Holders a notice
that states the special record date,
the related payment date and the amount of
such interest to be paid.
2.13 CUSIP Numbers.
The Company in
issuing the Notes may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of
redemption as a convenience to Holders;
provided that any such notice may state
that no representation is made as to the
correctness of such numbers either as
printed on the Notes or as contained in any
notice of a redemption and that
reliance may be placed only on the other
identification numbers printed on the
Notes, and any such redemption shall not be
affected by any defect in or
omission of such numbers. The Company will
promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION AND PREPAYMENT
3.01 Notices to Trustee.
If the Company
elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30
days but not more than 60 days before a
redemption date, an Officers'
Certificate setting forth (i) the clause of
this Indenture pursuant to which the
redemption shall occur, (ii) the redemption
date, (iii) the principal amount of
Notes to be redeemed and (iv) the
redemption price.
3.02 Selection of Notes to Be Redeemed.
If less than all
of the Notes are to be redeemed or purchased in an offer
to purchase at any time, the Trustee shall
select the Notes to be redeemed or
purchased among the Holders of the Notes in
compliance with the requirements of
the principal national securities exchange,
if any, on which the Notes are
listed or, if the Notes are not so listed,
on a pro rata basis, by lot or in
accordance with any other method the
Trustee considers fair and appropriate. In
the event of partial redemption by lot, the
particular Notes to be redeemed
shall be selected, unless otherwise
provided herein, not less than 30 nor more
than 60 days prior to the redemption date
by the Trustee from the outstanding
Notes not previously called for
redemption.
The Trustee
shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of
any Note selected for partial
redemption, the principal amount thereof to
be redeemed. Notes and portions of
Notes selected shall be in amounts of
$1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder
are to be redeemed, the entire
outstanding amount of Notes held by such
Holder, even if not a multiple of
$1,000, shall be redeemed. Except as
provided in the preceding sentence,
provisions of this Indenture that apply to
Notes called for redemption also
apply to portions of Notes called for
redemption.
3.03 Notice of Redemption.
At least 30 days
but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed,
by first class mail, a notice of
redemption to each Holder whose Notes are
to be redeemed at its registered
address.
The notice shall
identify the Notes (including the CUSIP number, if any) to
be redeemed and shall state:
<PAGE>
-35-
(a) the
redemption date;
(b) the
redemption price;
(c) if any Note
is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and
that, after the redemption date upon
surrender of such Note, a new Note or Notes
in principal amount equal to the
unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and
address of the Paying Agent;
(e) that Notes
called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless
the Company defaults in making such redemption payment,
interest on Notes called for redemption
ceases to accrue on and after the
redemption date;
(g) the
paragraph of the Notes and/or Section of this Indenture pursuant
to
which the Notes called for redemption are
being redeemed; and
(h) that no
representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice
or printed on the Notes.
At the Company's
request, the Trustee shall give the notice of redemption
in the Company's name and at its expense;
provided that the Company shall have
delivered to the Trustee, at least 15 days
prior to the date of the mailing of
such notice, an Officers' Certificate
requesting that the Trustee give such
notice and setting forth the information to
be stated in such notice as provided
in the preceding paragraph.
3.04 Effect of Notice of Redemption.
Once notice of
redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become
irrevocably due and payable on the redemption
date at the redemption price. A notice of
redemption may not be conditional.
3.05 Deposit of Redemption Price.
One Business Day
prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent
money sufficient to pay the redemption
price of and accrued interest on all Notes
to be redeemed on that date. The
Trustee or the Paying Agent shall promptly
return to the Company any money
deposited with the Trustee or the Paying
Agent by the Company in excess of the
amounts necessary to pay the redemption
price of, and accrued interest on, all
Notes to be redeemed.
If the Company
complies with the provisions of the preceding paragraph, on
and after the redemption date, interest
shall cease to accrue on the Notes or
the portions of Notes called for
redemption. If a Note is redeemed on or after
an interest record date but on or prior to
the related interest payment date,
then any accrued and unpaid interest shall
be paid to the Person in whose name
such Note was registered at the close of
business on such record date. If any
Note called for redemption shall not be so
paid upon surrender for redemption
because of the failure of the Company to
comply with the preceding paragraph,
interest shall be paid on the unpaid
principal, from the redemption date until
such principal is paid, and to the extent
lawful on any interest not paid on
such unpaid principal, in each case at the
rate provided in the Notes and in
Section 4.01 hereof.
<PAGE>
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3.06 Notes Redeemed in Part.
Upon surrender
of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request,
the Trustee shall authenticate for the
Holder at the expense of the Company a new
Note equal in principal amount to the
unredeemed portion of the Note
surrendered.
3.07 Optional Redemption.
(a) Except as
set forth in clauses (b) and (c) of this Section 3.07, the
Company shall not have the option to redeem
the Notes pursuant to this Section
3.07 prior to March 15, 2010. On or after
March 15, 2010, the Company shall have
the option to redeem the Notes, in whole or
in part, at the redemption prices
(expressed as percentages of principal
amount) set forth below plus accrued and
unpaid interest and Additional Interest, if
any, thereon, to the applicable
redemption date, if redeemed during the
twelve-month period beginning on March
15 of the years indicated below:
<TABLE>
<CAPTION>
Year
Percentage
----
----------
<S>
<C>
2010 .................. 103.313%
2011 .................. 102.208%
2012 .................. 101.104%
2013 and thereafter ... 100.000%
</TABLE>
(b)
Notwithstanding the provisions of clause (a) of this Section 3.07,
at
any time on or prior to March 15, 2008, the
Company may on one or more occasions
redeem up to an aggregate of 35% of the
aggregate principal amount of Notes
issued under this Indenture at a redemption
price equal to 106.625% of the
principal amount thereof plus accrued and
unpaid interest and Additional
Interest thereon, if any, to the redemption
date, with the net cash proceeds of
one or more Equity Offerings of the
Company, to the extent the net cash proceeds
thereof are contributed to the Company as a
capital contribution to the common
equity of the Company; provided that at
least 65% of the aggregate principal
amount of the Notes issued under this
Indenture remains outstanding immediately
after the occurrence of such redemption and
that such redemption occurs within
90 days of the date of the closing of such
Equity Offering.
(c)
Notwithstanding the provisions of clauses (a) and (b) of this
Section
3.07, prior to March 15, 2010, the Notes
will be redeemable, in whole, at any
time, or in part, from time to time, at the
option of the Company upon not less
than 30 nor more than 60 days' notice at a
redemption price equal to the sum of:
(1) 100% of the principal amount thereof,
plus accrued and unpaid interest
thereon to the redemption date, if any;
plus (2) the Make-Whole Amount.
(d) Any
redemption pursuant to this Section 3.07 shall be made pursuant
to
the provisions of Section 3.01 through 3.06
hereof.
3.08 Mandatory Redemption.
The Company
shall not be required to make mandatory redemption or sinking
fund payments with respect to the
Notes.
<PAGE>
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ARTICLE IV
COVENANTS
4.01 Payment of Notes.
The Company
shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates
and in the manner provided in the
Notes. Principal, premium, if any, and
interest shall be considered paid on the
date due if the Paying Agent, if other than
the Company or a Subsidiary thereof,
holds as of 12:00 noon Eastern Time on the
due date money deposited by the
Company in immediately available funds and
designated for and sufficient to pay
all principal, premium, if any, and
interest then due. The Company shall pay all
Additional Interest, if any, in the same
manner on the dates and in the amounts
set forth in the Registration Rights
Agreement.
The Company
shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on
overdue principal at the rate equal to
1% per annum in excess of the then
applicable interest rate on the Notes to the
extent lawful; it shall pay interest
(including post-petition interest in any
proceeding under any Bankruptcy Law) on
overdue installments of interest and
Additional Interest (without regard to any
applicable grace period) at the same
rate to the extent lawful.
4.02 Maintenance of Office or Agency.
The Company
shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an
office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar)
where Notes may be surrendered for
registration of transfer or for exchange
and where notices and demands to or
upon the Company in respect of the Notes
and this Indenture may be served. The
Company shall give prompt written notice to
the Trustee of the location, and any
change in the location, of such office or
agency. If at any time the Company
shall fail to maintain any such required
office or agency or shall fail to
furnish the Trustee with the address
thereof, such presentations, surrenders,
notices and demands may be made or served
at the Corporate Trust Office of the
Trustee.
The Company may
also from time to time designate one or more other offices
or agencies where the Notes may be
presented or surrendered for any or all such
purposes and may from time to time rescind
such designations; provided that no
such designation or rescission shall in any
manner relieve the Company of its
obligation to maintain an office or agency
in the Borough of Manhattan, The City
of New York for such purposes. The Company
shall give prompt written notice to
the Trustee of any such designation or
rescission and of any change in the
location of any such other office or
agency.
The Company
hereby designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in
accordance with Section 2.03.
4.03 Reports.
(a) Whether or
not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the
Company shall furnish to the Holders of
Notes within the time periods specified in
the SEC's rules and regulations (i)
all quarterly and annual financial
information that would be required to be
contained in a filing with the SEC on Forms
10-Q and 10-K if the Company and its
Subsidiaries were required to file such
forms, including a "Management's
Discussion and Analysis of Financial
Condition and Results of Operations" that
describes the financial condition and
results of operations of the Company and
its consolidated Subsidiaries and,
<PAGE>
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with respect to the annual information
only, a report thereon by the Company's
certified independent accountants and (ii)
all current reports that would be
required to be filed with the SEC on Form
8-K if the Company and its
Subsidiaries were required to file such
reports. In addition, following
consummation of the Exchange Offer, whether
or not required by the rules and
regulations of the SEC, the Company shall
file a copy of all such information
and reports with the SEC for public
availability within the time periods
specified in the SEC's rules and
regulations (unless the SEC will not accept
such a filing) and make such information
available to securities analysts and
prospective investors upon request if not
then publicly available. The Company
shall at all times comply with TIA Section
314(a). Delivery by the Company of
reports, information and documents to the
Trustee pursuant to TIA Section 314(a)
shall be for informational purposes only
and the Trustee's receipt of such shall
not constitute constructive notice of any
information contained therein or
determinable from information contained
therein, including the Company's
compliance with any of its covenants
hereunder (as to which the Trustee is
entitled to rely exclusively on Officers'
Certificates).
(b) For so long
as any Notes remain outstanding, the Company and the
Guarantors shall furnish to the Holders and
to prospective investors, upon their
request, the information required to be
delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(c)
Notwithstanding the foregoing, such requirements shall be
deemed
satisfied prior to the commencement of the
Exchange Offer or the effectiveness
of the Shelf Registration Statement by the
filing with the SEC of the
registration statement relating to the
exchange offer and/or the Shelf
Registration Statement, and any amendments
thereto, of the Securities; provided
that any such Registration Statement is
filed within the time periods specified
in the Registration Rights Agreement.
4.04 Compliance Certificate.
(a) The Company
shall deliver to the Trustee, within 100 days after the end
of each fiscal year, an Officers'
Certificate stating that a review of the
activities of the Company and its
Subsidiaries during the preceding fiscal year
has been made under the supervision of the
signing Officers with a view to
determining whether the Company has kept,
observed, performed and fulfilled its
obligations under this Indenture, and
further stating, as to each such Officer
signing such certificate, that to the best
of his or her knowledge the Company
has kept, observed, performed and fulfilled
each and every covenant contained in
this Indenture and is not in default in the
performance or observance of any of
the terms, provisions and conditions of
this Indenture (or, if a Default or
Event of Default shall have occurred,
describing all such Defaults or Events of
Default of which he or she may have
knowledge and what action the Company is
taking or proposes to take with respect
thereto) and that to the best of his or
her knowledge no event has occurred and
remains in existence by reason of which
payments on account of the principal of or
interest, if any, on the Notes is
prohibited or if such event has occurred, a
description of the event and what
action the Company is taking or proposes to
take with respect thereto.
(b) So long as
not contrary to the then current recommendations of the
American Institute of Certified Public
Accountants, the year-end financial
statements delivered pursuant to Section
4.03(a) above shall be accompanied by a
written statement of the Company's
independent public accountants (who shall be
a firm of established national reputation)
that in making the examination
necessary for certification of such
financial statements, nothing has come to
their attention that would lead them to
believe that the Company has violated
any provisions of Article 4 or Article 5
hereof or, if any such violation has
occurred, specifying the nature and period
of existence thereof, it being
understood that such accountants shall not
be liable directly or indirectly to
any Person for any failure to obtain
knowledge of any such violation.
(c) The Company
shall, so long as any of the Notes are outstanding, deliver
to the Trustee, as soon as possible, and in
any event within five days after any
Officer becomes aware of any Default or
Event of
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Default, an Officers' Certificate
specifying such Default or Event of Default
and what action the Company is taking or
proposes to take with respect thereto.
4.05 Taxes.
The Company
shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes,
assessments, and governmental levies
except such as are contested in good faith
and by appropriate proceedings or
where the failure to effect such payment is
not adverse in any material respect
to the Holders of the Notes.
4.06 Stay, Extension and Usury Laws.
The Company and
each of the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any
time insist upon, plead, or in any
manner whatsoever claim or take the benefit
or advantage of, any stay, extension
or usury law wherever enacted, now or at
any time hereafter in force, that may
affect the covenants or the performance of
this Indenture; and the Company and
each of the Guarantors (to the extent that
it may lawfully do so) hereby
expressly waives all benefit or advantage
of any such law, and covenants that it
shall not, by resort to any such law,
hinder, delay or impede the execution of
any power herein granted to the Trustee,
but shall suffer and permi
