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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 16, 1997
Atria Communities, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 0-211589 61-1303738
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
515 West Market Street
Louisville, Kentucky 40202
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (502) 596-7540
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
ITEM 1-4. NOT APPLICABLE.
ITEM 5. OTHER EVENTS.
On October 16, 1997, Atria Communities, Inc. (the "Company") completed the
private placement (the "Notes Offering") of $125.0 million aggregate principal
amount of 5.0% Convertible Subordinated Notes due 2002 (the "Notes") in a Rule
144A offering under the Securities Act of 1933, as amended (the "Securities
Act"). The Notes, which are not redeemable until October 15, 2000, are
convertible on or after the 90th day following the latest date of initial
issuance of the Notes into shares of common stock, par value $0.10 per share, of
the Company (the "Common Stock") at a conversion price of $20.864 per share. The
Company also granted BT Alex. Brown Incorporated, Donaldson, Lufkin & Jenrette
Securities Corporation, Morgan Stanley & Co. Incorporated, Smith Barney Inc. and
J.C. Bradford & Co. (collectively, the "Initial Purchasers") a 30-day option to
purchase up to $18,750,000 additional principal amount of the Notes solely to
cover over-allotments, if any.
After deducting discounts and expenses of the Notes Offering, the net
proceeds to the Company approximated $121.1 million. The Company intends to use
the net proceeds from the Notes Offering to finance the development and
acquisition of additional assisted living communities and for working capital
and general corporate purposes.
The Notes and the Common Stock issuable upon their conversion have not been
registered under the Securities Act and may not be offered or sold in the United
States absent registration or an applicable exemption from registration
requirements. Accordingly, the Notes were issued only (i) to "Qualified
Institutional Buyers" (as defined in Rule 144A under the Securities Act) in
compliance with Rule 144A, (ii) to a limited number of institutional "Accredited
Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) and (iii) pursuant to offers and sales that occurred outside the United
States within the meaning of Regulation S under the Securities Act.
Pursuant to a Registration Rights Agreement between the Company and the
Initial Purchasers, the Company has agreed to file with the Securities and
Exchange Commission within 90 days of the latest date of original issuance of
the Notes, to use its best efforts to cause to be declared effective within 120
days following such filing and to use all reasonable efforts to keep effective
for two years, a registration statement with respect to the resale of the Notes
and the underlying Common Stock. The Company will be required to pay liquidated
damages to the holders of the Notes or the underlying Common Stock under certain
circumstances if the Company is not in compliance with its registration
obligations.
ITEM 6. NOT APPLICABLE.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
(c) Exhibits.
4.1 Form of 5.0% Convertible Subordinated Notes Due 2002 (included in Exhibit
4.2).
4.2 Indenture dated as of October 16, 1997, between Atria Communities, Inc. and
PNC Bank, Kentucky, Inc., as Trustee.
99.1 Registration Rights Agreement dated as of October 16, 1997, by and among
Atria Communities, Inc., BT Alex. Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Morgan Stanley & Co. Incorporated, Smith
Barney Inc. and J.C. Bradford & Co.
ITEM 8. NOT APPLICABLE.
ITEM 9. SALES OF EQUITY SECURITIES PURSUANT TO REGULATION S.
Pursuant to the Notes Offering, the Company sold $1,500,000 in principal
amount of the Notes without registration in reliance upon the exemption afforded
by Regulation S under the Securities Act. See Item 5 for additional information
with respect to the Notes Offering.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ATRIA COMMUNITIES, INC.
Dated: October 27, 1997 By: /s/ Audra J. Eckerle
-----------------------------
Audra J. Eckerle
General Counsel and
Assistant Secretary
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EXHIBIT 4.2
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ATRIA COMMUNITIES, INC.
$125,000,000
5.0% Convertible Subordinated Notes due 2002
___________________
INDENTURE
Dated as of October 16, 1997
___________________
PNC Bank, Kentucky, Inc.
Trustee
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS
Section 1.1. Definitions. 1
Section 1.2. Other Definitions. 6
Section 1.3. Rules of Construction. 6
ARTICLE II THE NOTES
Section 2.1. Designation, Amount and Issue of Notes. 7
Section 2.2. Form of Notes. 7
Section 2.3. Date and Denomination of Notes; Payments of Interest. 8
Section 2.4. Execution of Notes. 9
Section 2.5. Registrar, Paying Agent and Conversion Agent. 10
Section 2.6. Paying Agent to Hold Money in Trust. 10
Section 2.7. Noteholder Lists. 11
Section 2.8. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. 11
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes. 19
Section 2.10. Treasury Notes. 20
Section 2.11. Temporary Notes. 20
Section 2.12. Cancellation. 20
Section 2.13. Deposit of Funds. 21
ARTICLE III REDEMPTION OF NOTES
Section 3.1. Right to Redeem; Notice to Trustee. 21
Section 3.2. Selection of Notes to Be Redeemed. 21
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Section 3.3. Notice of Redemption. 22
Section 3.4. Effect of Notice of Redemption. 23
Section 3.5. Deposit of Redemption Price. 23
Section 3.6. Notes Redeemed in Part. 23
Section 3.7. Conversion Arrangement on Call for Redemption. 23
ARTICLE IV SUBORDINATION OF NOTES
Section 4.1. Notes Subordinated to Senior Indebtedness. 24
Section 4.2. Payments to Holders. 24
Section 4.3. Notes to Be Subrogated to Rights of Holders of Senior Indebtedness. 27
Section 4.4. Obligations of the Company Unconditional. 27
Section 4.5. Notice to Trustee. 27
Section 4.6. Application by Trustee of Monies Deposited With It. 28
Section 4.7. Subordination Rights Not Impaired by Acts or Omissions of Company or holders of Senior Indebtedness. 28
Section 4.8. Trustee to Effectuate Subordination. 29
Section 4.9. Right of Trustee to Hold Senior Indebtedness. 29
Section 4.10. Article IV Not to Prevent Events of Default. 29
Section 4.11. No Fiduciary Duty Created to Holders of Senior Indebtedness. 29
Section 4.12. Article Applicable to Paying Agent. 29
ARTICLE V COVENANTS
Section 5.1. Payment of Notes. 29
Section 5.2. SEC Reports. 30
Section 5.3. Maintenance of Office or Agency. 30
Section 5.4. Stay, Extension and Usury Laws. 31
Section 5.5. Liquidation. 31
Section 5.6. Compliance Certificates. 32
Section 5.7. Notice of Defaults. 32
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Section 5.8. Payment of Taxes and Other Claims. 32
Section 5.9. Corporate Existence. 32
Section 5.10. Maintenance of Properties. 33
Section 5.11. Further Instruments and Acts. 33
ARTICLE VI NOTEHOLDERS' LISTS AND REPORTS BY THE TRUSTEE
Section 6.1. Holders' Lists. 33
Section 6.2. Preservation and Disclosure of Lists. 34
Section 6.3. Reports by Trustee. 34
ARTICLE VII REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON AN EVENT OF DEFAULT
Section 7.1. Events of Default. 34
Section 7.2. Payment of Notes on Default; Suit Therefor. 36
Section 7.3. Application of Monies Collected by Trustee. 38
Section 7.4. Proceedings by Holders. 38
Section 7.5. Proceedings by Trustee. 39
Section 7.6. Remedies Cumulative and Continuing. 39
Section 7.7. Direction of Proceedings and Waiver of Defaults by Majority of Holders. 40
Section 7.8. Notice of Defaults. 40
Section 7.9. Undertaking to Pay Costs. 41
ARTICLE VIII CONCERNING THE TRUSTEE
Section 8.1. Duties and Responsibilities of Trustee. 41
Section 8.2. Reliance on Documents, Opinions, Etc. 42
Section 8.3. No Responsibility for Recitals, Etc. 43
Section 8.4. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes. 43
Section 8.5. Monies to Be Held in Trust. 43
Section 8.6. Compensation and Expenses of Trustee. 44
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Section 8.7. Officers' Certificate as Evidence. 44
Section 8.8. Conflicting Interests of Trustee. 45
Section 8.9. Eligibility of Trustee. 45
Section 8.10. Resignation or Removal of Trustee. 45
Section 8.11. Acceptance by Successor Trustee. 46
Section 8.12. Succession by Merger, Etc. 47
Section 8.13. Limitation on Rights of Trustee as Creditor. 47
ARTICLE IX CONCERNING THE NOTEHOLDERS
Section 9.1. Action by Holders. 47
Section 9.2. Proof of Execution by Holders. 48
Section 9.3. Who are Deemed Absolute Owners. 48
Section 9.4. Company-Owned Notes Disregarded. 48
Section 9.5. Revocation of Consents; Future Holders Bound. 49
ARTICLE X NOTEHOLDERS' MEETINGS
Section 10.1. Purpose of Meetings. 49
Section 10.2. Call of Meetings by Trustee. 50
Section 10.3. Call of Meetings by Company or Holders. 50
Section 10.4. Qualifications for Voting. 50
Section 10.5. Regulations. 50
Section 10.6. Voting. 51
Section 10.7. No Delay of Rights by Meeting. 51
ARTICLE XI SUPPLEMENTAL INDENTURES
Section 11.1. Supplemental Indentures Without Consent of Holders. 52
Section 11.2. Supplemental Indentures with Consent of Holders. 53
Section 11.3. Effect of Supplemental Indenture. 54
Section 11.4. Notation on Notes. 54
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Section 11.5. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. 54
ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1. Company May Consolidate Etc. on Certain Terms. 55
Section 12.2. Successor Corporation to Be Substituted. 55
Section 12.3. Opinion of Counsel to Be Given Trustee. 56
ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1. Discharge of Indenture. 56
Section 13.2. Deposited Monies to Be Held in Trust by Trustee. 57
Section 13.3. Paying Agent to Repay Monies Held. 57
Section 13.4. Return of Unclaimed Monies. 57
Section 13.5. Reinstatement. 57
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1. Indenture and Notes Solely Corporate Obligations. 58
ARTICLE XV CONVERSION OF NOTES
Section 15.1. Right to Convert. 58
Section 15.2. Exercise of Conversion Privilege; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends. 59
Section 15.3. Cash Payments in Lieu of Fractional Shares. 60
Section 15.4. Conversion Price. 60
Section 15.5. Adjustment of Conversion Price. 60
Section 15.6. Effect of Reclassification, Consolidation, Merger or Sale. 69
Section 15.7. Taxes on Shares Issued. 70
Section 15.8. Reservation of Shares to Be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock. 70
Section 15.9. Responsibility of Trustee. 70
Section 15.10. Notice to Holders Prior to Certain Actions. 71
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ARTICLE XVI REPURCHASE OF NOTES AT OPTION OF THE HOLDER
UPON CHANGE IN CONTROL
Section 16.1. Right to Require Repurchase. 72
Section 16.2. Notices; Method of Exercising Purchase Right, Etc. 72
Section 16.3. Certain Definitions. 74
Section 16.4. Change in Control. 74
Section 16.5. Consolidation, Merger, Etc. 75
ARTICLE XVII MISCELLANEOUS PROVISIONS
Section 17.1. Provisions Binding on Company's Successors. 76
Section 17.2. Official Acts by Successor Corporation. 76
Section 17.3. Addresses for Notices, Etc. 76
Section 17.4. Governing Law. 77
Section 17.5. Evidence of Compliance with Conditions Precedent Certificates to Trustee. 77
Section 17.6. Legal Holidays. 77
Section 17.7. Trust Indenture Act. 78
Section 17.8. No Security Interest Created. 78
Section 17.9. Benefits of Indenture. 78
Section 17.10. Table of Contents, Headings, Etc. 78
Section 17.11. Authenticating Agent. 78
Section 17.12. Execution in Counterparts. 79
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INDENTURE dated as of October 16, 1997, between Atria Communities, Inc., a
Delaware corporation (hereinafter sometimes called the "Company," as more fully
set forth in Section 1.1), and PNC Bank, Kentucky, Inc., a Kentucky corporation,
as trustee hereunder (hereinafter sometimes called the "Trustee," as more fully
set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 5.0% Convertible Subordinated Notes due 2002 (hereinafter
sometimes called the "Notes"), in an aggregate principal amount not to exceed
$125,000,000 ($143,750,000 if the overallotment option is exercised in full)
and, to provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture;
WHEREAS, the Notes, the certificate of authentication to be borne by the
Notes, a form of assignment, a form of option to elect repurchase upon a Change
in Control and a form of conversion notice to be borne by the Notes are to be
substantially in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee or a duly authorized
authenticating agent, as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be, authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Notes by the Holders thereof,
the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
The terms defined in this Section 1.1 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.1. All other terms used in this Indenture
that are defined in the Trust Indenture Act or which are by reference therein
defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such
terms in said Trust Indenture
<PAGE>
Act and in said Securities Act as in force at the date of the execution of this
Indenture. The words "herein," "hereof," "hereunder," and words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article include the
plural as well as the singular.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent or any
successor thereto.
"Board of Directors" means either the Board of Directors of the Company or
any committee of such Board duly authorized to act for it hereunder.
"Business Day" means any day other than (i) a Saturday or Sunday or (ii) a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed.
"Capitalized Lease Obligation" means indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles;
the amount of such indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
"Cash" or "cash" means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" means the common stock, par value $0.10 per share, of the
Company.
"Company" means Atria Communities, Inc. until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Corporate Trust Office" means the principal offices of the Trustee at
which at any particular time its corporate trust business shall be administered,
which offices as of the date of this Indenture are located at 500 West Jefferson
Street, Louisville, Kentucky 40202.
"Custodian" means PNC Bank, Kentucky, Inc., as custodian with respect to
the Notes in global form, or any successor entity thereto.
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"Default" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default.
"Depositary" means, with respect to the Notes issued or issuable in whole
or in part in global form, the Person designated as Depositary by the Company
pursuant to Section 2.8 with respect to such Notes (or any successor thereto).
"Designated Senior Indebtedness" means the Company's Indebtedness
outstanding from time to time under its revolving credit facility and any
particular Senior Indebtedness in which the instrument creating or evidencing
the same or the assumption or guarantee thereof (or related agreements or
documents to which the Company is a party) expressly provides that such Senior
Indebtedness shall be "Designated Senior Indebtedness" for purposes of the
Indenture (provided that such instrument, agreement or other document may place
limitations and conditions on the right of such Senior Indebtedness to exercise
the rights of Designated Senior Indebtedness).
"Event of Default" means any event specified in Section 7.1(a), (b), (c),
(d), (e), (f), (g) or (h).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Holder" or "Noteholder" means a Person in whose name a Note is registered
on the Note Register.
"Indebtedness" means, with respect to any Person, and without duplication,
(a) the principal of and premium, if any, and interest on, and fees, costs,
enforcement expenses, collateral protection expenses and other reimbursement or
indemnity obligations in respect to all indebtedness or obligations of the
Company to any Person, including but not limited to banks and other lending
institutions, for money borrowed that is evidenced by a note, bond, loan
agreement, or similar instrument or agreement (including purchase money
obligations with original maturities in excess of one year and noncontingent
reimbursement obligations in respect of amounts paid under letters of credit),
(b) all reimbursement obligations and other liabilities (contingent or
otherwise) of such Person with respect to letters of credit, bank guarantees or
bankers' acceptances, (c) all obligations and liabilities (contingent or
otherwise) in respect of Capitalized Lease Obligations on the balance sheet of
such Person, (d) all obligations of such Person (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreement or other
similar instrument or agreement or foreign currency hedge, exchange, purchase or
similar instrument or agreement, (e) all direct or indirect guaranties or
similar agreements by such Person in respect of, and obligations or liabilities
(contingent or otherwise) of such Person to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect of indebtedness, obligations
or liabilities of another Person of the kind described in clauses (a) through
(d), (f) any indebtedness or other obligations, excluding any operating leases
the Company is currently (or may become) a party to, described in clauses (a)
through (d) secured by any mortgage, pledge, lien or other encumbrance existing
on property which is owned or held by such Person, regardless of whether the
indebtedness or other obligation secured thereby shall have been assumed by such
Person and (g) any and all deferrals, renewals, extensions and refundings of, or
amendments,
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modifications or supplements to, any indebtedness, obligation or liability of
the kind described in clauses (a) through (f).
"Indenture" means this instrument as originally executed or, if
supplemented or amended as herein provided, as so supplemented or amended.
"Initial Purchasers" means BT Alex. Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Morgan Stanley & Co. Incorporated, Smith Barney
Inc. and J.C. Bradford & Co.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Officer" means the Chairman of the Board, the President, the Chief
Financial Officer, the Controller, the Secretary, any Assistant Secretary or any
Vice President of the Company.
"Officer's Certificate" means a certificate signed by two Officers, one of
whom must be the Chairman of the Board, the President, the Chief Financial
Officer or a Vice President of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, association, joint stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading through
Automated Linkages Market operated by the National Association of Securities
Dealers, Inc. or any successor thereto.
"Principal" or "principal" of a debt security, including the Notes, means
the principal of the security plus, when appropriate, the premium, if any, on
the security.
"QIB" shall mean a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Redemption Date," when used with respect to any Note to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of October 16, 1997, between the Company and the Initial
Purchasers.
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"Regulation D" means Regulation D promulgated under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Representative" means the indenture trustee or other trustee, agent or
representative for the holders of any Senior Indebtedness.
"Senior Indebtedness" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, Indebtedness of the Company, whether outstanding
on the date of this Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company (including all deferrals,
renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing), unless in the case of any particular
Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall not be senior
in right of payment to the Notes or expressly provides that such Indebtedness is
"pari passu" with or "junior" to the Notes. Notwithstanding the foregoing, the
term Senior Indebtedness shall not include any Indebtedness of the Company to
any Subsidiary of the Company.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means with respect to any Person, (i) any corporation, limited
liability company, association or other business entity of which more than 50%
of the total voting power of shares of capital stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such person or one or more
Subsidiaries of such person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or managing general partner of which is such person
or a Subsidiary of such person or (b) the only general partners of which are
such person or one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. (S)(S)77aaa-77666), as amended by the Trust Indenture Reform Act of 1990,
and as in effect on the date of this Indenture, except as provided in Sections
11.3, 15.6 and 16.5, and except to the extent any amendment to the Trust
Indenture Act expressly provides for application of the Trust Indenture Act as
in effect on another date.
"Trading Day" or "trading day" means, with respect to any security, each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on the exchange or market in which such security is
traded.
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"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture, and thereafter
means the successor.
"Trust Officer" means any officer or corporate trust officer or assistant
corporate trust officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"U.S. Government Obligations" means direct noncallable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States is pledged.
"Vice President" when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.2. Other Definitions.
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TERM DEFINED IN SECTION
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"Change in Control" Section 16.4
"Closing Price" Section 15.5
"Conversion Agent" Section 2.5
"Conversion Price" Section 15.4
"Current Market Price" Section 15.5
"Defaulted Interest" Section 2.3
"Expiration Time" Section 15.5
"Investment Letter" Section 2.8(b)
"Note Registrar" Section 2.8
"Paying Agent" Section 2.5
"Payment Blockage Notice" Section 4.2
"Purchased Shares" Section 15.5
"Record Date" Section 15.5
"Registrar" Section 2.5
"Securities" Section 15.5
"Trigger Event" Section 15.5
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Section 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect on
the date hereof, and any reference in this Indenture to "generally accepted
accounting principles" refers to generally accepted accounting principles in
effect on the date hereof;
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(3) words in the singular include the plural, and words in the plural
include the singular;
(4) provisions apply to successive events and transactions; and
(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
THE NOTES
Section 2.1. Designation, Amount and Issue of Notes.
The Notes shall be designated as "5.0% Convertible Subordinated Notes due
2002." Notes not to exceed the aggregate principal amount of $125,000,000 (or
$143,750,000 if the over-allotment option set forth in Section 2(b) of the
Purchase Agreement, dated October 9, 1997, by and between the Company and the
Initial Purchasers is exercised in full) upon the execution of this Indenture,
or (except pursuant to Sections 2.8, 2.9, 15.2 and 16.1 hereof) from time to
time thereafter, may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Notes to or upon the written order of the Company, signed by its (a) Chairman of
the Board, President or any Vice President (whether or not designated by a
number or numbers or word or words added before or after the title "Vice
President") and (b) Treasurer or Assistant Treasurer or its Secretary or
Assistant Secretary, without any further action by the Company hereunder.
Section 2.2. Form of Notes.
The Notes and the Trustee's certificate of authentication to be borne by
such Notes shall be substantially in the form set forth in Exhibit A, which is
incorporated in and part of this Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the Officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage.
Any Note in global form shall represent such of the outstanding Notes as
shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be increased or reduced to reflect transfers or exchanges permitted
hereby. Any endorsement of a Note in global form to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the
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Holder of such Notes in accordance with this Indenture. Payment of principal of
and interest and premium, if any, on any Note in global form shall be made to
the Holder of such Note.
The terms and provisions contained in the form of Note attached as Exhibit
A hereto shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Note, check, advice of payment or
redemption notice, and any such document may contain a statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers.
Section 2.3. Date and Denomination of Notes; Payments of Interest.
The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount ($100,000 and integral multiples of
$1,000 in excess thereof, in the case of Notes issued pursuant to Regulation D).
Every Note shall be dated October 16, 1997 and shall bear interest from the
applicable date in each case as specified on the face of the form of Note
attached as Exhibit A hereto. Interest on the Notes shall be paid in arrears on
each April 15 and October 15 commencing April 15, 1998. Interest on the Notes
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
The Person in whose name any Note is registered at the close of business on
any record date with respect to any interest payment date (including any Note
that is converted after the record date and on or before the interest payment
date) shall be entitled to receive the interest payable on such interest payment
date notwithstanding the cancellation of such Note upon any transfer, exchange
or conversion subsequent to the record date and on or prior to such interest
payment date, provided, that in the case of any Note, or portion thereof, called
for redemption on a Redemption Date or repurchased in connection with a Change
in Control on a repurchase date that is after a record date and prior to (but
excluding) the next succeeding interest payment date, interest shall not be paid
to the Person in whose name the Note, or portion thereof, is registered on the
close of business on such record date and the Company shall have no obligation
to pay interest on such Note or such portion except to the extent required to be
paid upon redemption or repurchase of such Note or portion thereof pursuant to
Section 3.1 or 16.1 hereof. Interest may, at the option of the Company, be paid
at the Trustee's Corporate Trust Office or by check mailed to the address of
such Person on the Note register. The term "Interest Payment Date" shall mean
April 15 and October 15 of each year commencing on April 15, 1998. The term
"record date" with respect to any interest payment date shall mean the April 1
or October 1 preceding said April 15 or October 15, respectively.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any said April 15 or October 15 (herein called "Defaulted
Interest") shall be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below.
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest to be paid on each Note and the date
of payment (which shall not be less than 25 days after the receipt by the
Trustee of such notice, unless the Trustee shall consent to an earlier date),
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than ten (10) days prior to the date of the proposed payment and
not less than ten (10) days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first-class postage prepaid, to each
Noteholder at his address as it appears in the Note register, not less than ten
(10) days prior to such special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Notes were registered at the close of business on such special record date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or
designated for listing, and upon such notice as may be required by such exchange
or automated quotation system, if, after notice is given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Section 2.4. Execution of Notes.
The Notes shall be signed in the name and on behalf of the Company by the
manual or facsimile signage of its Chairman of the Board, President or any Vice
President (whether or not designated by a number or numbers or word or words
added before or after the title "Vice President") and attested by the manual or
facsimile signature of its Secretary or any of its Assistant Secretaries (which
may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise). Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Note attached
as Exhibit A hereto, manually executed by the Trustee (or an authenticating
agent appointed by the Trustee as provided by Section 17.11), shall be entitled
to the benefits of this Indenture or be valid or obligatory for any purpose.
Such certificate by the Trustee (or such an authenticating agent) upon any Note
executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
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In case any Officer who shall have signed any of the Notes shall cease to
be such Officer before the Notes so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Notes nevertheless
may be authenticated and delivered or disposed of as though the Person who
signed such Notes had not ceased to be such Officer and any Note may be signed
on behalf of the Company by such Persons as, at the actual date of the execution
of such Note, shall be the proper Officers, although at the date of the
execution of this Indenture any such Person was not such an Officer.
Section 2.5. Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange (the "Registrar"), an office or
agency where Notes may be presented for payment (the "Paying Agent"), an office
or agency where Notes may be presented for conversion (the "Conversion Agent")
and an office or agency where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Registrar shall keep
a register of the Notes and of their transfer and exchange.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee
of the name and address of any Agent not a party to this Indenture. If the
Company fails to maintain a Registrar, Paying Agent, Conversion Agent or agent
for service of notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such.
The Company initially appoints the Trustee as Registrar, Paying Agent,
Conversion Agent and agent for service of notices and demands in connection with
the Notes.
Section 2.6. Paying Agent to Hold Money in Trust.
On or prior to each due date of the principal of or interest on any
Securities, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal or interest so becoming due. Subject to Sections 4.1, 4.2 and
4.3, the Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Notes, and shall notify the Trustee of any default by the
Company (or any other obligor on the Notes) in making any such payment. If the
Company or an Affiliate of the Company acts as Paying Agent, it shall, on or
before each due date of the principal of or interest on any Notes, segregate the
money and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and the Trustee may at
any time during the continuance of any default, upon written request to a Paying
Agent, require such Paying Agent to forthwith pay to the Trustee all sums so
held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than
the Company) shall have no further liability for the money.
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Section 2.7. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or 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 Holders, and the
Company shall otherwise comply with TIA Section 312(a).
Section 2.8. Exchange and Registration of Transfer of Notes; Restrictions
on Transfer; Depositary.
(a) The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 5.3 being herein sometimes
collectively referred to as the "Note register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Note register shall be in
written form or in any form capable of being converted into written form within
a reasonably prompt period of time. The Trustee is hereby appointed "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-Registrars in accordance with
Section 5.3.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-Registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.8, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 5.3. Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of transfer or for
exchange, redemption, repurchase or conversion shall (if so required by the
Company or the Note Registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee, and the Notes shall be duly executed by the Noteholder thereof or
his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax, assessment or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note Registrar nor any co-
registrar shall be required to exchange or register a transfer of (a) any Notes
for a period of 15 days next preceding any selection of Notes to be redeemed or
(b) any Notes or portions thereof called for redemption pursuant to Article III
or (c) any Notes or portions thereof surrendered for conversion pursuant to
Article XV.
(b) So long as the Notes are eligible for book-entry settlement with
the Depositary, unless otherwise required by law, all Notes to be traded (i) (A)
on the PORTAL Market or (B) inside the United States to an Institutional
Accredited Investor that, prior to such transfer, is required to furnish to the
Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Note ("Investment Letter"),
shall be represented by a Note in global form (the "U.S. Global Note") or (ii)
to a Person who is not a U.S. Person (as defined in Regulation S) who is
acquiring the Note in an offshore transaction (a "Foreign Person") in accordance
with Regulation S shall be represented by a Note in global form (the "Regulation
S Global Note") (the U.S. Global Note and the Regulation S Global Note
collectively referred to in this Indenture as the "Global Note"), the U.S.
Global Note and the Regulation S Global Note being registered in the name of the
Depositary or the nominee of the Depositary. The transfer and exchange of
beneficial interests in the Global Note, which does not involve the issuance of
a Note in certificated form, shall be effected through the Depositary, in
accordance with this Indenture (including restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.
At any time at the request of the beneficial Holder of an interest in
the Global Note to obtain a Note in certificated form, such beneficial Holder
shall be entitled to obtain a Note in certificated form upon written request to
the Trustee and the Custodian in accordance with the standing instructions and
procedures existing between the Custodian and Depositary for the issuance
thereof. Upon receipt of any such request, the Trustee, or the Custodian at the
discretion of the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Custodian,
the aggregate principal amount of the U.S. Global Note or Regulation S Global
Note, as appropriate, to be reduced by the principal amount of the Note in
certified form issued upon such request to such beneficial Holder and, following
such reduction, the Company will execute and the Trustee will authenticate and
deliver to such beneficial Holder (or its nominee) a Note or Notes in
certificated form in the appropriate aggregate principal amount in the name of
such beneficial Holder (or its nominee) and bearing such restrictive legends as
may be required by this Indenture.
Any transfer of a beneficial interest in the Global Note which cannot
be effected through book-entry settlement must be effected by the delivery to
the transferee (or its nominee) of a Note or Notes in certificated form
registered in the name of the transferee (or its nominee) on the books
maintained by the Note Registrar in accordance with the transfer restrictions
set forth herein. With respect to any such transfer, the Trustee, or the
Custodian at
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the direction of the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Custodian,
the aggregate principal amount of the U.S. Global Note or Regulation S Global
Note to be reduced by the principal amount of the respective beneficial interest
in the U.S. Global Note or Regulation S Global Note being transferred and,
following such reduction, the Company will execute and the Trustee will
authenticate and deliver to the transferee (or such transferee's nominee, as the
case may be), a Note or Notes in certificated form in the appropriate aggregate
principal amount in the name of such transferee (or its nominee) bearing such
restrictive legends as may be registered by this Indenture.
(c) So long as the Notes are eligible for book-entry settlement, or
unless otherwise required by law, upon any transfer of a Note in certificated
form to a QIB in accordance with Rule 144A or an Institutional Accredited
Investor that is required to deliver a Investment Letter or a Foreign Person in
accordance with the Regulation S, and upon receipt of the Note or Notes in
certificated form being so transferred, together with a certification from the
transferor that the transferee is a QIB or an Institutional Accredited Investor
(and, in the case of an Institutional Accredited Investor, that such transferee
has delivered an Investment Letter) or a Foreign Person (or other evidence
satisfactory to the Trustee), the Trustee shall make, or direct the Custodian to
make, an endorsement on the U.S. Global Note or Regulation S Global Note to
reflect an increase in the aggregate principal amount of the Notes represented
by the U.S. Global Note or Regulation S Global Note, and the Trustee shall
cancel such Note or Notes in certificated form and cause, or direct the
Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Custodian, the aggregate principal
amount of Notes represented by the U.S. Global Note or Regulation S Global Note
to be increased accordingly provided that no Note in certificated form, or
portion thereof, in respect of which the Company or an Affiliate of the Company
held any beneficial interest shall be included in the Global Note until such
Note in certificated form is freely tradable in accordance with Rule 144(k)
provided further that the Trustee shall issue Notes in certificated form upon
any transfer of a beneficial interest in the Global Note to the Company or an
Affiliate of the Company.
Any Global Note may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Indenture as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be
tradable on the PORTAL Market or tradable on Euroclear or Cedel or as may be
required for the Notes to be tradable on any other market developed for trading
of securities pursuant to Rule 144A or Regulation S under the Securities Act or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange or automated quotation
system upon which the Notes may be listed or traded or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Notes are subject.
(d) Every Note that bears or is required under this Section 2.8(d) to
bear the legend set forth in this Section 2.8(d) (together with any Common Stock
issued upon conversion of the Notes and required to bear the legend set forth in
Section 2.8(e), collectively, the "Restricted Notes") shall be subject to the
restrictions on transfer set forth in this Section 2.8(d) (including those set
forth in the legend set forth below) unless such restrictions on transfer
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shall be waived by written consent of the Company (with written notice to the
Trustee), and the Holder of each such Restricted Note, by such Noteholder's
acceptance thereof, agrees to be bound by all such restrictions on transfer. As
used in Section 2.8(d) and 2.8(e), the term "transfer" encompasses any sale,
pledge, transfer or other disposition whatsoever of any Restricted Note.
Until two (2) years after the original issuance date of any Note, any
certificate evidencing such Note (and all Notes issued in exchange therefor or
substitution thereof, other than Common Stock, if any, issued upon conversion
thereof, which shall bear the legend set forth in Section 2.8(e), if applicable)
shall bear a legend in substantially the following form, unless otherwise agreed
by the Company in writing, with written notice thereof to the Trustee:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS, 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 AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) or (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED
HEREBY AND THE LAST DATE ON WHICH ATRIA COMMUNITIES, INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS
THE OWNER OF THE NOTE (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION
OF SUCH NOTE 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 INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO PNC BANK,
KENTUCKY, INC., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
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
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
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OF SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE
THE RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS NOTE TO PNC BANK, KENTUCKY, INC., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E)
ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO PNC BANK, KENTUCKY,
INC., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS IT 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.
THIS LEGEND WILL BE REMOVED UPON ANY TRANSFER OF THE NOTE EVIDENCED
HEREBY UPON OR AFTER THE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Any Note (or security issued in exchange or substitution therefor) as
to which such restrictions on transfer shall have expired in accordance with
their terms or as to which the conditions for removal of the foregoing legend
set forth therein have been satisfied may, upon surrender of such Note for
exchange to the Note Registrar in accordance with the provisions of this Section
2.8, be exchanged for a new Note or Notes, of like tenor and aggregate principal
amount, which shall not bear the restrictive legend required by this Section
2.8(d).
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in the second paragraph of Section 2.8(b) and in this
Section 2.8(d), a Global Note may not be transferred as a whole or in part
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Global Notes. Initially, the U.S. Global Note
and the Regulation S Global Note shall be issued to the Depositary, registered
in the name of Cede & Co., as the nominee of the Depositary, and deposited with
the Custodian for Cede & Co.
The Trustee is hereby authorized and requested to execute and deliver
a Letter of Representation to the Depositary and, in connection with any
successor nominee for the
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Depositary or any successor Depositary, enter into comparable arrangements, and
shall have the same rights with respect to its actions thereunder as it has with
respect to its action under this Indenture.
If at any time the Depositary for the Global Note notifies the Company
that it is unwilling or unable to continue as Depositary for the Note, the
Company may appoint a successor Depositary with respect to such Note. If a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
Notes, will authenticate and deliver, Notes in certificated form, in an
aggregate principal amount equal to the principal amount of the Global Note, in
exchange for the Global Note.
If a Note in certificated form is issued in exchange for any portion
of a Global Note after the close of business at the office or agency where such
exchange occurs on any record date and before the opening of business at such
office or agency on the next succeeding interest payment date, interest will not
be payable on such interest payment date in respect of such Note, but will be
payable on such interest payment date only to the Person to whom interest in
respect of such portion of such Global Note is payable in accordance with the
provisions of this Indenture.
Notes in certificated form issued in exchange for all or a part of a
Global Note pursuant to this Section 2.8 shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instruction from
its direct or indirect participants or otherwise, shall instruct the Trustee in
writing. Upon execution and authentication, the Trustee shall deliver such Notes
in certificated form to the Persons in whose names such Notes in certificated
form are so registered.
At such time as all interests in a Global Note have been redeemed,
repurchased, converted, canceled, exchanged for Notes in certificated form, or
transferred to a transferee who receives Notes in certificated form, such Global
Note shall, upon receipt thereof, be canceled by the Trustee in accordance with
standing procedures and instructions existing between the Depositary and the
Custodian. At any time prior to such cancellation, if any interest in a Global
Note is exchanged for Notes in certificated form, redeemed, converted,
repurchased or canceled, or transferred to a transferee who receives Notes in
certificated form therefor or any Note in certificated form is exchanged or
transferred for part of a Global Note, the principal amount of such Global Note
shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced or increased,
as the case may be, and an endorsement shall be made on such Global Note, by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction or increase. In the event of any transfer of any beneficial interest
between the U.S. Global Note and the Regulation S Global Note in accordance with
the standing procedures and instructions between the Depositary and the
Custodian and the transfer restrictions set forth herein, the aggregate
principal amount of each of the U.S. Global Note and the Regulation S Global
Note shall be appropriately increased or decreased, as the case may be, and an
endorsement shall be made on each of the U.S. Global Note and the Regulation S
Global Note by the Trustee or the Custodian, at the direction of the Trustee, to
reflect such reduction or increase.
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(e) Until two (2) years after the original issuance date of any Note,
any stock certificate representing Common Stock issued upon conversion of such
Note shall bear a legend in substantially the following form, unless such Common
Stock has been transferred pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be effective
at the time of such transfer) or such Common Stock has been issued upon
conversion of Notes that have been transferred pursuant to a registration
statement that has been declared effective under the Securities Act, or unless
otherwise agreed by the Company in writing with written notice thereof to the
transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, 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.
THE HOLDER HEREOF AGREES THAT PRIOR TO THE DATE THAT IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE UPON THE CONVERSION OF
WHICH THE COMMON STOCK EVIDENCED HEREBY WAS ISSUED AND THE LAST DATE ON WHICH
ATRIA COMMUNITIES, INC. (THE "COMPANY") OR ANY "AFFILIATE" (AS DEFINED IN RULE
144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE NOTE OR THE
COMMON STOCK EVIDENCED HEREBY (THE "RESTRICTION TERMINATION DATE"); (1) IT WILL
NOT RESELL OR OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO
THE COMPANY, OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN COMPLIANCE WITH RULE 144A, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER FURNISHES TO NATIONAL
CITY BANK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT OR A SUCCESSOR TRANSFER AGENT,
AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 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 A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER BEFORE THE RESTRICTION TERMINATION
DATE (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE), IT WILL FURNISH
NATIONAL CITY BANK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
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PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO EACH
PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(F) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE OR UPON THE EARLIER SATISFACTION OF NATIONAL CITY
BANK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), THAT THE
COMMON STOCK HAS BEEN OR IS BEING OFFERED AND SOLD IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Any such Common Stock as to which such restrictions on transfer shall
have expired in accordance with their terms or as to which the conditions for
removal of the foregoing legend set forth therein have been satisfied may, upon
surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive legend required by
this Section 2.8(e).
(f) Any certificate evidencing a Note that has been transferred to an
Affiliate of the Company within two (2) years after the original issuance date
of the Note, as evidenced by a notation on the Assignment Form for such transfer
or in the representation letter delivered in respect thereof (substantially in
the form attached as an exhibit to the Offering Memorandum), shall, until two
(2) years after the last day on which the Company or any Affiliate of the
Company was an owner of such Note, bear a legend in substantially the following
form, unless otherwise agreed by the Company (with written notice thereof to the
Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, 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
IN THE FOLLOWING SENTENCE.
BY ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO ATRIA COMMUNITIES, INC. OR ANY
SUBSIDIARY THEREOF, (B) IN A TRANSACTION REGISTERED UNDER THE SECURITIES ACT OR
(C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
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SECURITIES ACT (IF AVAILABLE) AND (2) THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. THIS LEGEND SHALL BE REMOVED UPON THE TRANSFER OF THE
NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE
PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE.
IF THE PROPOSED TRANSFER IS PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, PROVIDE TO PNC BANK, KENTUCKY, INC., AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY 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 "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Any stock certificate representing Common Stock issued upon conversion
of such Note shall also bear a legend in substantially the form indicated above,
unless otherwise agreed by the Company (with written notice thereof to the
Trustee).
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes.
In case any Note shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute and upon its written request the
Trustee or an authenticating agent appointed by the Trustee shall authenticate
and deliver, a new Note, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every case the
applicant for a substituted Note shall furnish to the Company, to the Trustee
and, if applicable, to such authenticating agent such security or indemnity as
may be required by them to save each of them harmless for any loss, liability,
cost or expense caused by or connected with such substitution, and, in every
case of destruction, loss or theft, the applicant shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent evidence to
their satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note which has matured or is about to mature or has been
called for redemption or is about to be converted into Common Stock shall become
mutilated or be destroyed, lost or stolen,
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the Company may, instead of issuing a substitute Note, pay or authorize the
payment of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in case of destruction, loss or theft, evidence satisfactory to the Company, the
Trustee and, if applicable, any Paying Agent or Conversion Agent of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.9
by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionally with any and all other Notes
duly issued hereunder. To the extent permitted by law, all Notes shall be held
and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment or conversion of mutilated,
destroyed, lost or stolen Notes and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment or conversion of negotiable
instruments or other securities without their surrender.
Section 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any notice, direction, waiver or consent, Notes owned by
the Company or any other obligor on the Notes or by any Affiliate of the Company
or of such other obligor on the Notes shall be disregarded, except that, for
purposes of determining whether the Trustee shall be protected in relying on any
such notice, direction, waiver or consent, only Notes which the Trustee knows
are so owned shall be so disregarded. Notes so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company or any other obligor on the Notes
or any Affiliate of the Company or of such other obligor.
Section 2.11. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
execute, and, upon the order of the Company, the Trustee shall authenticate and
deliver temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variation that the Company with the consent of the
Trustee considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate and deliver
definitive Notes in exchange for temporary Notes.
Section 2.12. Cancellation.
All Notes surrendered for the purpose of payment, redemption, repurchase,
conversion, exchange or registration of transfer, shall, if surrendered to the
Company or any paying agent or
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any Note registrar or any conversion agent, be surrendered to the Trustee and
promptly canceled by it, or, if surrendered to the Trustee, shall be promptly
canceled by it, and no Notes shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture provided that any Note or
portion thereof surrendered for repurchase shall only be canceled at such time
as such Note or portion thereof has been repurchased pursuant to Article XVI
hereof. The Trustee shall destroy canceled Notes (unless the Company directs it
to do otherwise) and, after such destruction, shall, if requested by the
Company, deliver a certificate of such destruction to the Company. If the
Company shall acquire any of the Notes, such acquisitions shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes unless
and until the same are delivered to the Trustee for cancellation.
Section 2.13. Deposit of Funds.
Prior to 10:00 a.m. New York City time on each Interest Payment Date and
the maturity date, the Company shall deposit with the Paying Agent in
immediately available funds sufficient to make cash payments, if any, due on
such Interest Payment Date or maturity date, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date or maturity date, as the case may be.
ARTICLE III
REDEMPTION OF NOTES
Section 3.1. Right to Redeem; Notice to Trustee.
The Notes shall not be redeemable at the option of the Company prior to
October 15, 2000. At any time after October 15, 2000, and prior to maturity, the
Notes may be redeemed at the option of the Company from time to time, as a whole
or in part, at the Redemption Prices specified in paragraph nine of the form of
Note (reverse side) attached hereto as Exhibit A, together with accrued interest
up to but not including the Redemption Date.
If the Company elects to redeem Notes pursuant to this Section 3.1 and
paragraph eight of the Notes, it shall notify the Trustee in writing at least 45
days prior to the Redemption Date as fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee) of the Redemption Date and the
principal amount of Notes to be redeemed. If fewer than all of the Notes are to
be redeemed, the record date relating to such redemption shall be selected by
the Company and given to the Trustee, which record date shall not be less than
ten days after the date of notice to the Trustee.
Section 3.2. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall, not
more than 60 days prior to the Redemption Date, select the Notes to be redeemed
by lot or, in the Trustee's discretion, on a pro rata basis; provided, however,
that such method is not prohibited by any stock exchange or automated quotations
system on which the Notes are then listed or traded, and if both of such methods
are so prohibited, the Trustee shall select the Notes to be redeemed in a
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manner that (i) the Trustee considers fair and appropriate and (ii) is not so
prohibited. The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption. The Trustee shall select for redemption
portions of the principal of Notes that have denominations larger than $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption.
At least 15 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first-class
mail to the Trustee and to each Holder of Notes to be redeemed at such Holder's
address as it appears on the Note register.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current Conversion Price;
(4) the name and address of the Paying Agent and the Conversion Agent;
(5) that Notes called for redemption must be presented and surrendered to
the Paying Agent to collect the Redemption Price;
(6) that the Notes called for redemption may be converted at any time
before the close of business on the fifth Business Day immediately preceding the
Redemption Date;
(7) that Holders who wish to convert Notes must satisfy the requirements
in paragraph 11 of the Notes;
(8) that, unless the Company defaults in making the redemption payment,
the only remaining right of the Holder shall be to receive payment of the
Redemption Price upon presentation and surrender to the Paying Agent of the
Notes;
(9) 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
presentation and surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion thereof will be issued; and
(10) that interest on Notes called for redemption ceases to accrue on and
after the Redemption Date.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense.
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Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the Redemption Date and at the Redemption Price stated in the
notice, except for Notes that are converted in accordance with the provisions of
Section 15.1. Upon presentation and surrender to the Paying Agent, Notes called
for redemption shall be paid at the Redemption Price, plus accrued interest up
to but not including the Redemption Date.
Section 3.5. Deposit of Redemption Price.
On or before 10:00 a.m. New York City time on any Redemption Date, the
Company shall deposit with the Paying Agent money sufficient to pay the
Redemption Price of and accrued interest on all Notes to be redeemed on that
date, other than Notes or portions thereof called for redemption on that date
which have been delivered by the Company to the Trustee for cancellation or have
been converted. The Paying Agent shall promptly return to the Company any money
not required for that purpose because of the conversion of Notes pursuant to
Article XV or otherwise. If such money is instead held by the Company or an
Affiliate of the Company in trust and is not required for such purpose, it shall
be discharged from the trust.
Section 3.6. Notes Redeemed in Part.
Upon presentation and surrender of a Note that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for and deliver to the
Holder a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
Notwithstanding the foregoing, the Trustee shall not pay the Redemption
Price of any Notes or mail any notice of redemption during the continuance of a
default in payment of interest on the Notes or of any Event of Default of which
a Trust Officer has knowledge. If any Note called for redemption shall not be
so paid upon surrender thereof for redemption, the principal and premium, if
any, shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate borne by the Note and such Note shall remain
convertible into Common Stock until the principal and premium, if any, shall
have been paid or duly provided for.
Section 3.7. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes by an agreement with one or more investment
bankers or other purchasers to purchase such Notes by paying to the Trustee in
trust for the Holders, on or before the date fixed for redemption, an amount not
less than the applicable Redemption Price, together with interest accrued to
(but excluding) that date fixed for redemption, of such Notes. Notwithstanding
anything to the contrary contained in this Article III, the obligation of the
Company to pay the Redemption Price of such Notes, together with interest
accrued to (but excluding) the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the date fixed for redemption), any Notes not
duly surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed,
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to the fullest extent permitted by law, acquired by such purchasers from such
Holders and surrendered by such purchasers for conversions, all as of
immediately prior to the close of business on the date fixed for redemption (and
the right to convert any such Notes shall be extended through such time),
subject to payment of the above amount as aforesaid. At the written direction of
the Company, the Trustee shall hold and dispose of any such amount paid to it in
the same manner as it would monies deposited with it by the Company for the
redemption of Notes. Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Notes shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any Notes between the
Company and such purchasers to which the Trustee has not consented in writing,
including the costs and expenses, including reasonable legal fees, incurred by
the Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE IV
SUBORDINATION OF NOTES
Section 4.1. Notes Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Notes issued hereunder
by his or her acceptance thereof likewise covenants and agrees, that all Notes
shall be issued subject to the provisions of this Article IV; and each Person
holding any Note, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of and interest on all Notes issued hereunder
(including, without limitation, in connection with any redemption of Notes)
shall, to the extent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of this Indenture or thereafter
created, incurred, assumed or guaranteed.
Section 4.2. Payments to Holders.
No payment shall be made with respect to the principal of, or premium, if
any, or interest on the Notes (including, but not limited to, the Redemption
Price with respect to the Notes to be called for redemption in accordance with
Section 3.2 or submitted for repurchase in accordance with Section 16.2, as the
case may be, as provided in the Indenture), except payments and distributions
made by the Trustee as permitted by Section 4.6, if:
(a) a default in the payment of principal, premium, interest, rent or other
obligations due on any Senior Indebtedness occurs and is continuing (or, in the
case of Senior Indebtedness for which there is a period of grace, in the event
of such a default that continues beyond the
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period of grace, if any, specified in the instrument or lease evidencing such
Senior Indebtedness), unless and until such default shall have been cured or
waived or shall have ceased to exist, or
(b) a default, other than a payment default, on any Designated Senior
Indebtedness occurs and is continuing that then permits holders of such
Designated Senior Indebtedness to accelerate its maturity and the Trustee
receives a written notice of the default (a "Payment Blockage Notice") from a
Representative or the Company.
If the Trustee receives any Payment Blockage Notice pursuant to clause (b)
above, no subsequent Payment Blockage Notice shall be effective for purposes of
this Section unless and until (A) at least 365 days shall have elapsed since the
initial effectiveness of the immediately prior Payment Blockage Notice, and (B)
all scheduled payments of principal, premium, if any, and interest on the Notes
that have come due have been paid in full in cash. No nonpayment default that
existed or was continuing on the date of delivery of any Payment Blockage Notice
to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
The Company, after providing written notice to the Trustee, shall resume
payments on and distributions in respect of the Notes upon the earlier of:
(a) the date upon which the default is cured or waived or ceases to exist,
or
(b) in the case of a default referred to in clause (b) above, 179 days pass
after notice is received if the maturity of such Designated Senior Indebtedness
has not been accelerated;
unless this Article IV otherwise prohibits the payment or distribution at the
time of such payment or distribution.
Upon any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness, or payment thereof in
accordance with its terms provided for in cash or other payment satisfactory to
the holders of such Senior Indebtedness, before any payment is made on account
of the principal of, premium, if any, or interest on the Notes (except payments
made pursuant to Article XIII from monies deposited with the Trustee pursuant
thereto prior to commencement of proceedings for such dissolution, winding up,
liquidation or reorganization) and upon any such dissolution or winding up or
liquidation or reorganization of the Company or bankruptcy, insolvency,
receivership or other proceeding, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the holders of the Notes or the Trustee would be entitled,
except for the provision of this Article IV, shall (except as aforesaid) be paid
by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the holders of
the Notes or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, or
as otherwise required by
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law or a court order) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full, in cash or other payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any payment or distribution or
provision therefor is made to the holders of the Notes or to the Trustee.
For purposes of this Article IV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article IV with respect to
the Notes to the payment of all Senior Indebtedness which may at the time be
outstanding provided that (i) the Senior Indebtedness is assumed by the new
corporation, if any, resulting from any reorganization or readjustment, and (ii)
the rights of the holders of Senior Indebtedness (other than leases which are
not assumed by the Company or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XII shall not be deemed a dissolution,
winding up, liquidation or reorganization for the purposes of this Section 4.2
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article XII.
In the event of the acceleration of the Notes because of an Event of
Default, no payment or distribution shall be made to the Trustee or any holder
of Notes in respect of the principal of, premium, if any, or interest on the
Notes (including, but not limited to, the Redemption Price with respect to the
Notes, called for redemption in accordance with Section 3.2 or submitted for
repurchase in accordance with Section 16.2, as the case may be, as provided in
the Indenture), except payments and distributions made by the Trustee as
permitted by Section 4.6, until all Senior Indebtedness has been paid in full in
cash or other payment satisfactory to the holders of Senior Indebtedness or such
acceleration is rescinded in accordance with the terms of this Indenture. If
payment of the Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Indebtedness of the acceleration.
In the event that, notwithstanding the foregoing provisions, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (including, without limitation, by way of setoff or
otherwise), prohibited by the foregoing, shall be received by the Trustee or the
Holders before all Senior Indebtedness is paid in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness, or provision is made
for such payment thereof in accordance with its terms in cash or other payment
satisfactory to the holders of such Senior Indebtedness, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests
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may appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 4.2 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.6. This Section 4.2 shall be subject to
the further provisions of Section 4.6, and the right to rescind and annul
acceleration of the notice pursuant to Section 7.1
Section 4.3. Notes to Be Subrogated to Rights of Holders of Senior
Indebtedness.
Subject to the prior payment in full of all Senior Indebtedness then due,
the Holders shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until the principal of and interest on the
Notes shall be paid in full, and, for purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness of assets, whether in
cash, property or securities, distributable to the holders of Senior
Indebtedness under the provisions hereof to which the Holders would be entitled
except for the provisions of this Article IV, and no payment pursuant to the
provisions of this Article IV to the holders of Senior Indebtedness by the
Holders shall, as among the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders, be deemed to be a payment by the Company
to or on account of Senior Indebtedness, it being understood that the provisions
of this Article IV are, and are intended, solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Section 4.4. Obligations of the Company Unconditional.
Nothing contained in this Article IV or elsewhere in this Indenture or in
any Note is intended to or shall impair, as among the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Notes, as the same shall become due and payable
in accordance with the terms of the Notes, or to affect the relative rights of
the Holders and other creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
the happening of an Event of Default under this Indenture, subject to the
provisions of Article VIII, and the rights, if any, under this Article IV of the
holders of Senior Indebtedness in respect of assets, whether in cash, property
or securities, of the Company received upon the exercise of any such remedy.
Section 4.5. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Notes. Notwithstanding the provisions of this Article
IV or any other provision of this Indenture, the Trustee shall not at any time
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee, unless and until the Trustee shall
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have received written notice thereof from the Company or from the holder or
holders of Senior Indebtedness or from their Representative or Representatives;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Sections 8.1 and 8.2, shall be entitled to assume conclusively
that such facts do not exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or herself to be a holder of Senior
Indebtedness (or a Representative of such holder) to establish that such notice
has been given by a holder of Senior Indebtedness or a Representative of any
such holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article IV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
each Person under this Article IV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of Person to receive such payment.
Section 4.6. Application by Trustee of Monies Deposited With It.
Money or U.S. Government Obligations deposited with the Trustee or any
Paying Agent (whether or not in trust) for the payment of the principal of or
interest on any Notes shall be subject to the provisions of Sections 4.1, 4.2,
4.3 and 4.4; except that, if two (2) Business Days prior to the date on which by
the terms of this Indenture any such monies or U.S. Government Obligations may
become payable for any purpose (including, without limitation, the payment of
either the principal of or interest on any Note) the Trustee shall not have
received with respect to such monies or U.S. Government Obligations the notice
provided for in Section 4.5, then the Trustee or any Paying Agent shall have
full power and authority to receive such monies and to apply such monies to the
purpose for which they were received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date. This Section 4.6
shall be construed solely for the benefit of the Trustee and the Paying Agent
and shall not otherwise affect the rights that holders of Senior Indebtedness
may have to recover any such payments from the Holders in accordance with the
provisions of this Article IV.
Section 4.7. Subordination Rights Not Impaired by Acts or Omissions of
Company or holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination, as herein provided, shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of any Senior Indebtedness may extend,
renew, modify or amend the terms of such Senior Indebtedness or any security
therefor and release, sell or exchange such security and otherwise deal freely
with the Company, all without affecting the liabilities and obligations of the
parties to this Indenture or the Holders. No provision in any
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supplemental indenture which affects the superior position of the holders of the
Senior Indebtedness shall be effective against the holders of the Senior
Indebtedness unless the holders of such Senior Indebtedness (required pursuant
to the terms of such Senior Indebtedness to give such consent) have consented
thereto.
Section 4.8. Trustee to Effectuate Subordination.
Each Holder of a Note by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article IV and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
Section 4.9. Right of Trustee to Hold Senior Indebtedness.
The Trustee, in its individual capacity, shall be entitled to all of the
rights set forth in this Article IV in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
Section 4.10. Article IV Not to Prevent Events of Default.
The failure to make a payment on account of the principal of or interest on
the Notes by reason of any provision in this Article IV shall not be construed
as preventing the occurrence of an Event of Default under Section 7.1.
Section 4.11. No Fiduciary Duty Created to Holders of Senior Indebtedness.
Notwithstanding any other provision in this Article IV, the Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness by
virtue of the provisions of this Article IV.
Section 4.12. Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article IV shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article IV in addition to or in place of the Trustee.
ARTICLE V
COVENANTS
Section 5.1. Payment of Notes.
The Company shall promptly make all payments in respect of the Notes on the
dates and in the manner provided in the Notes and this Indenture. An installment
of principal or interest shall
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be considered paid on the date it is due if the Trustee or Paying Agent (other
than the Company or an Affiliate of the Company) holds on that date money
deposited by the Company or an Affiliate thereof sufficient to pay the
installment. The Company shall pay interest on overdue principal at the rate
borne by the Notes per annum; it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
Section 5.2. SEC Reports.
The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files them with the SEC, the Company
shall file copies of all such reports, information and other documents with the
Trustee. The Company will cause any quarterly and annual reports which it mails
to its shareholders to be mailed to the Holders.
During the period beginning on the latest date of the original issuance of
the Notes and ending on the date that is two (2) years from such date, the
Company covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available to any
Holder or beneficial Holder of Notes or any Common Stock issued upon conversion
thereof which continue to be Restricted Securities in connection with any sale
thereof and any prospective purchaser of Notes or such Common Stock from such
Holder or beneficial Holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder or beneficial
Holder of such Notes or such Common Stock and it will take such further action
as any Holder or beneficial Holder of such Notes or such Common Stock may
reasonably request, all to the extent required from time to time to enable such
Holder or beneficial Holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such Rule may be amended from time to time. Upon the
request of any Holder or any beneficial Holder of the Notes or such Common
Stock, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
Section 5.3. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or agency (which
may be the Corporate Trust Office) where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for
conversion or redemption and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency not designated or appointed by the Trustee.
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 or the office or agency of the Trustee in New York, New
York.
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
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manner relieve the Company of its obligation to maintain an office or agency in
New York, New York, for such purposes. The Company will give prompt written
notice to the holders of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby initially designates each of the Corporate Trust Office
of the Trustee and the office or agency of the Trustee in New York, New York as
one such office or agency of the Company for each of the aforesaid purposes.
Section 5.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claims or
take the benefit or advantage of, any stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
the principal of, premium, if any, or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture, and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefits or
advantage of any such law, and covenants that it will not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 5.5. Liquidation.
Subject to the provisions of Article IV, so far as they may be applicable
hereto, the Board of Directors or the shareholders of the Company may not adopt
a plan of liquidation, which plan provides for, contemplates or the effectuation
of which is preceded by (a) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company otherwise than
substantially as an entirety (any such sale, lease, conveyance or other
disposition substantially as an entirety being governed by Article VII) and (b)
the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and of the remaining assets of the
Company to the holders of the capital stock of the Company, unless the Company
shall in connection with the adoption of such plan make provision for, or agree
that prior to making any liquidating distributions it will make provision for,
the satisfaction of the Company's obligations hereunder and under the Notes as
to the payment of the principal and interest thereof. The Company shall be
deemed to make provision for such payments only if (1) the Company irrevocably
deposits in trust with the Trustee money or U.S. Government Obligations maturing
as to principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such interest, to pay
the principal of and interest on the Notes then outstanding to maturity and to
pay all other sums payable by it hereunder or (2) there is an express assumption
of the due and punctual payment of the Company's obligations hereunder and under
the Notes and the performance and observance of all covenants and conditions to
be performed by the Company hereunder, by the execution and delivery of a
supplemental indenture in form satisfactory to the Trustee by a Person who
acquires, or will acquire (otherwise than pursuant to a lease), all or
substantially all of the assets of the Company, and which Person will have
assets (immediately after the acquisition) and aggregate earnings (for such
Person's four full
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fiscal quarters immediately preceding such acquisition) at least equal to the
assets of the Company (immediately preceding such acquisition) and the aggregate
earnings of the Company (for its four (4) full fiscal quarters immediately
preceding the acquisition), respectively, and which is a corporation organized
under the laws of the United States, any State thereof or the District of
Columbia; provided, however, that the Company shall not make any liquidating
distribution until after the Company (x) has certified to the Trustee with an
Officers' Certificate at least five (5) days prior to the making of any
liquidating distribution that it has complied with the provisions of this
Section 5.5 and (y) delivered to the Trustee an Opinion of Counsel that all
conditions precedent to such liquidation have been complied with.
Section 5.6. Compliance Certificates.
The Company shall deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company, an Officers' Certificate as to the signer's
knowledge of the Company's compliance with all conditions and covenants on its
part contained in this Indenture and stating whether or not the signer knows of
any default or Event of Default. If such signer knows of such a default or Event
of Default, the Officers' Certificate shall describe the default or Event of
Default and the efforts to remedy the same. For the purposes of this Section
5.6, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture. The
Officers' Certificate need not comply with Section 17.5 hereof.
Section 5.7. Notice of Defaults.
In the event (a) that Indebtedness of the Company in an aggregate amount in
excess of $10,000,000 is declared due and payable before its maturity because of
the occurrence of any default under such Indebtedness, or (b) of the occurrence
of any event which, with the giving of notice or the passage of time, or both,
would entitle the holder or holders of such Indebtedness to declare such
Indebtedness due and payable before its maturity, the Company will promptly give
written notice to the Trustee of such declaration.
Section 5.8. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company, directly or by reason
of its ownership of any Subsidiary, or upon the income, profits or property of
the Company and (b) all material lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which adequate provision has been made.
Section 5.9. Corporate Existence.
Subject to Article XII, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and rights (charter and statutory);
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provided, however, that the Company shall not be required to preserve any right
if the Board of Directors shall determine in good faith that the preservation is
no longer desirable in the conduct of the Company's business and that the loss
thereof is not, and will not be, adverse in any material respect to the Holders.
Section 5.10. Maintenance of Properties.
Subject to Section 5.5, the Company and its Subsidiaries will cause all
material properties (real and personal) owned, leased or licensed in the conduct
of their business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof and thereto, all as in the reasonable judgment of the Board of Directors
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times while any Notes are
outstanding, provided, however, that nothing in this Section 5.10 shall prevent
the Company and its Subsidiaries from discontinuing the maintenance of any such
properties if, in the reasonable judgment of the Board of Directors, such
discontinuance is desirable in the conduct of the Company's business and is not,
and will not be, adverse in any material respect to the Holders.
Section 5.11. Further Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS
BY THE TRUSTEE
Section 6.1. Holders' Lists.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semiannually, not more than 15 days after each April 1
and October 1 in each year beginning with 1998, and at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request (or such lesser time as the Trustee may reasonably request in
order to enable it to timely provide any notice to be provided by it hereunder),
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of Notes as of a date not more than 15 days (or such
other date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such
list need be furnished so long as the Trustee is acting as Note Registrar.
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Section 6.2. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Notes contained in the most recent list furnished to it as provided in Section
6.1 or maintained by the Trustee in its capacity as Note Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
6.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders of Notes with
respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any Agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders of Notes made pursuant to the
Trust Indenture Act.
Section 6.3. Reports by Trustee.
(a) Within 60 days after December 31 of each year commencing with the year
1997, the Trustee shall transmit to Holders of Notes such reports dated as of
December 31 of the year for which such reports are made concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission to
Holders of Notes, be filed by the Trustee with each stock exchange or automated
quotation system upon which the Notes may be listed or traded and with the
Company. The Company will notify the Trustee in writing within a reasonable
time if the Notes are listed on any stock exchange or automated quotation
system.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON AN EVENT OF DEFAULT
Section 7.1. Events of Default.
In case one or more of the following Events of Default (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) shall have occurred and be continuing:
(a) default in the payment of any installment of interest upon any of the
Notes as and when the same shall become due and payable, and continuance of such
default for a period of 30 days, whether or not such payment is permitted under
Article IV hereof; or
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(b) default in the payment of the principal of or premium, if any, on any
of the Notes as and when the same shall become due and payable either at
maturity or in connection with any redemption pursuant to Article III or
repurchase pursuant to Article XVI, by acceleration or otherwise, whether or not
such payment is permitted under Article IV hereof; or
(c) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Notes or in
this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section 7.1 specifically dealt
with) continued for a period of 60 days after the date on which written notice
of such failure, requiring the Company to remedy the same, shall have been given
to the Company by the Trustee, or to the Company and a Trust Officer of the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Notes at the time outstanding determined in accordance with Section 9.4; or
(d) failure on the part of the Company or any Subsidiary with respect to
its obligation to pay principal of or interest on Indebtedness for borrowed
money which default shall have resulted in Indebtedness in an amount in excess
of $10,000,000; or
(e) default by the Company with respect to any Indebtedness for borrowed
money of the Company, which default results in acceleration of any such
Indebtedness in an amount of in excess of $10,000,000 without such Indebtedness
having been discharged, or such acceleration having been rescinded or annulled
for a period of 10 days; or
(f) the Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(g) an involuntary case or other proceeding shall be commenced against the
Company seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 consecutive days; or
(h) the entry by a court having jurisdiction in the premises of a final
judgment, decree or order against the Company or any Subsidiary which shall
require the payment by the Company or any Subsidiary of an amount (to the extent
not covered by insurance) in excess of $10,000,000 and the continuance of any
such judgment, decree or order unstayed or unsatisfied and in effect for a
period of 60 consecutive days which is not being contested in good faith by
appropriate judicial proceedings;
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then, and in each and every such case (other than an Event of Default specified
in Section 7.1(f) or (g)), unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding hereunder
determined in accordance with Section 9.4, by notice in writing to the Company
(and to the Trustee if given by Holders), may declare the principal of all the
Notes and the interest accrued thereon to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 7.1(f) or (g)
occurs, the principal of all the Notes and the interest accrued thereon shall be
immediately and automatically due and payable without necessity of further
action. This provision, however, is subject to the condition that if, at any
time after the decree for the payment of the monies due shall have been obtained
or entered as hereinafter provided, the Company shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all Notes and the principal of and premium, if any, on any and all Notes which
shall have become due otherwise than by acceleration (with interest on overdue
installments of interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal and premium, if any, at
the rate borne by the Notes, to the date of such payment or deposit) and amounts
due to the Trustee pursuant to Section 8.6, and if any and all defaults under
this Indenture, other than the nonpayment of principal of and premium, if any,
and accrued interest on Notes which shall have become due by acceleration, shall
have been cured or waived pursuant to Section 7.7, then and in every such case
the Holders of a majority in aggregate principal amount of the Notes then
outstanding determined in accordance with Section 9.4, by written notice to the
Company and to the Trustee, may waive all defaults or Events of Default and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or Event of Default, or shall impair any right consequent thereon. The Company
shall notify a Trust Officer of the Trustee, promptly upon becoming aware
thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Holders of Notes, and the Trustee shall be restored respectively to
their several positions and rights hereunder and all rights, remedies and powers
of the Company, the Holders of Notes, and the Trustee shall continue as though
no such proceeding had been taken.
Section 7.2. Payment of Notes on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the payment
of any installment of interest upon any of the Notes as and when the same shall
become due and payable, and such default shall have continued for a period of 30
days, or (b) in case default shall be made in the payment of the principal of or
premium, if any, on any of the Notes as and when the same shall have become due
and payable, whether at maturity of the Notes or in connection with any
redemption or repurchase, under this Indenture, by declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders, the whole amount that then shall have become due and
payable on all such Notes for principal and premium,
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if any, or interest, or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) upon the overdue installments of interest
at the rate borne by the Notes and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder. Until such demand
by the Trustee, the Company may pay the principal of and premium, if any, and
interest on the Notes to the Holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as Trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Code, or any other applicable law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Company or such other obligor, or the property of the Company or such other
obligor, or in the case of any other judicial proceedings relative to the
Company or such other obligor upon the Notes, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 7.2, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Holders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 8.6, and any receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Holders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including counsel fees
incurred by it up to the date of such distribution. To the extent that such
payment of reasonable compensation, expenses, advances and disbursements out of
the estate in any such proceedings shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the
Holders may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
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All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders.
In any proceedings brought by the Trustee (and in any proceedings involving
the interpretation of any provision of this Indenture to which the Trustee shall
be a party), the Trustee shall be held to represent all the Holders, and it
shall not be necessary to make any Holders parties to any such proceedings.
Section 7.3. Application of Monies Collected by Trustee.
Any monies collected by the Trustee pursuant to this Article VII shall be
applied in the following order, at the date or dates fixed by the Trustee for
the distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: to the payment of all amounts due the Trustee under Section 8.6;
Second: subject to the provisions of Article IV, in case the principal of
the outstanding Notes shall not have become due and be unpaid, to the payment of
interest on the Notes in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest
has been collected by the Trustee) upon the overdue installments of interest at
the rate borne by the Notes, such payments to be made ratably to the Persons
entitled thereto;
Third: subject to the provisions of Article IV, in case the principal of
the outstanding Notes shall have become due, by declaration or otherwise, and be
unpaid, to the payment of the whole amount then owing and unpaid upon the Notes
for principal and premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue payments of interest at the rate borne by
the Notes, and in case such monies shall be insufficient to pay in full the
whole amounts so due and unpaid upon the Notes, then to the payment of such
principal and premium, if any, and interest without preference or priority of
principal and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the aggregate of such
principal and premium, if any, and accrued and unpaid interest; and
Fourth: subject to the provisions of Article IV, to the payment of the
remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 7.4. Proceedings by Holders.
No Holder shall have any right by virtue of or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with
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respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding determined in accordance with
Section 9.4 shall have made written request upon the Trustee to institute such
action, suit or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 7.7, it being understood and
intended, and being expressly covenanted by the taker and Holder of every Note
with every other taker and Holder and the Trustee, that no one or more Holders
shall have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders (except as otherwise provided herein). For the
protection and enforcement of this Section 7.4, each and every Noteholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision of this Indenture and any provision of
any Note, the right of any Holder of any Note to receive payment of the
principal of and premium, if any, and interest on such Note, on or after the
respective due dates therefor, or to institute suit for the enforcement of any
such payment on or after such respective dates against the Company shall not be
impaired or affected without the consent of such Holder.
Anything in this Indenture or the Notes to the contrary notwithstanding,
the Holder of any Note, without the consent of either the Trustee or the Holder
of any other Note, in his own behalf and for his own benefit, may enforce, and
may institute and maintain any proceeding suitable to enforce, his rights of
conversion as provided herein.
Section 7.5. Proceedings by Trustee.
In case of an Event of Default, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Section 7.6. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.9, all powers and
remedies given by this Article VII to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed
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cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder of any of the Notes to exercise any right or power accruing upon any
default or Event of Default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein and, subject to the provisions of Section
7.4, every power and remedy given by this Article VII or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
Section 7.7. Direction of Proceedings and Waiver of Defaults by Majority
of Holders.
The Holders of a majority in aggregate principal amount of the Notes at the
time outstanding determined in accordance with Section 9.4 shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee, provided, however, that (a) such direction shall not be in conflict
with any rule of law or with this Indenture, and (b) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. The Holders of a majority in aggregate principal amount of the Notes
at the time outstanding determined in accordance with Section 9.4 may on behalf
of the Holders of all of the Notes waive any past default or Event of Default
hereunder and its consequences except (i) a default in the payment of interest
or premium, if any, on, or the principal of, the Notes, (ii) a failure by the
Company to convert any Notes into Common Stock, (iii) a default in the payment
of the Redemption Price pursuant to Article III or repurchase price pursuant to
Article XVI or (iv) a default in respect of a covenant or provision hereof which
under Article XI cannot be modified or amended without the consent of the
Holders of all Notes then outstanding. Upon any such waiver, the Company, the
Trustee and the Holders shall be restored to their former positions and rights
hereunder, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by this Section
7.7, said default or Event of Default shall for all purposes of the Notes and
this Indenture be deemed to have been cured and to be not continuing, but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
Section 7.8. Notice of Defaults.
The Trustee shall, within 90 days after a Trust Officer has knowledge of
the occurrence of a default, mail to all Holders, as the names and addresses of
such Holders appear upon the Note register, notice of all defaults known to a
Trust Officer, unless such defaults shall have been cured or waived before the
giving of such notice and provided that, except in the case of default in the
payment of the principal of, or premium, if any, or interest on any of the
Notes, the Trustee shall be protected in withholding such notice if and so long
as a trust committee of directors and/or officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders.
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Section 7.9. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, provided that
the provisions of this Section 7.9 (to the extent permitted by law) shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Holders, holding in the aggregate more than ten percent
in principal amount of the Notes at the time outstanding determined in
accordance with Section 9.4, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or premium, if any, or interest
on any Note on or after the due date therefor or to any suit for the enforcement
of the right to convert any Note in accordance with the provisions of Article XV
or to require the Company to repurchase any Note in accordance with Article XVI.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1. Duties and Responsibilities of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trust Indenture Act, and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture or the Trust
Indenture Act against the Trustee; and
(2) in the absence of bad faith and willful misconduct on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions
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expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture but, in the case of any
such certificates or opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer or Officers, unless the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a majority in principal amount of the Notes at the time
outstanding determined as provided in Section 9.4 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee as Trustee, Paying Agent, Note Registrar, Custodian or
Conversion Agent shall be subject to the provisions of this Section.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers.
Section 8.2. Reliance on Documents, Opinions, Etc.
Except as otherwise provided in Section 8.1,
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, coupon or other paper or document believed
by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed) and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel, and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it thereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable
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security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, Note or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by Agent or attorney, provided, however, that if the payments
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liability as a condition to so
proceeding and the reasonable expenses of every such examination shall be paid
by the Company or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Company upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any Agent or attorney appointed by it with due care
hereunder; and
(g) the Trustee shall not be deemed to have notice of an Event of Default
or of any event or condition which, with the giving of notice, the passage of
time, or both, might constitute an Event of Default unless (i) the Trustee has
received written notice thereof from the Company or any Noteholder or (ii) a
Trust Officer shall have actual knowledge thereof.
Section 8.3. No Responsibility for Recitals, Etc.
The recitals contained herein and in the Notes (except in the Trustee's
certificate of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
Section 8.4. Trustee, Paying Agents, Conversion Agents or Registrar May
Own Notes.
The Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in
its individual or any other capacity, may become the owner or pledgee of Notes
with the same rights it would have if it were not Trustee, Paying Agent,
Conversion Agent or Note Registrar.
Section 8.5. Monies to Be Held in Trust.
Subject to the provisions of Section 13.4, all monies received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received.
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Money held by the Trustee in trust thereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as may be
agreed from time to time by the Company and the Trustee.
Section 8.6. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation for all services
rendered by it hereunder in any capacity (which shall not be limited by any
provision of law in regard to the compensation of a Trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ), except any such
expense, disbursement or advance as may arise from the Trustee's negligence,
willful misconduct, recklessness or bad faith. The Company also covenants to
indemnify the Trustee in any capacity under this Indenture and its agents and
any authenticating agent for, and to hold them harmless against, any loss,
liability or expense incurred without negligence, willful misconduct,
recklessness, or bad faith on the part of the Trustee or such Agent or
authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this trust or in any other capacity
hereunder, including the costs and expenses of defending themselves against any
claim of liability in the premises. All indemnifications and releases from
liability granted hereunder to the Trustee shall extend to its Officers,
directors, employees, agents, successors and assigns. The obligations of the
Company under this Section 8.6 to compensate or indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall be
secured by a lien prior to that of the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Notes. The obligation of the Company under this
Section 8.6 shall survive the satisfaction and discharge of this Indenture.
When the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in Section 7.1(f) or (g)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy, insolvency or
similar laws.
Section 8.7. Officers' Certificate as Evidence.
Except as otherwise provided in Section 8.1, wherever in the administration
of the provisions of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence, willful
misconduct, recklessness, or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered to
the Trustee.
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Section 8.8. Conflicting Interests of Trustee.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 8.9. Eligibility of Trustee.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and which
shall have (or, in the case of a corporation included in a bank holding company
system, the related bank holding company shall have) a combined capital and
surplus of at least $50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section 8.9, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.9, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VIII.
Section 8.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of
such resignation to the Company and to the Holders of Notes. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor Trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 60 days after the mailing of such
notice of resignation to the Holders, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee, or
any Noteholder who has been a bona fide Holder of a Note or Notes for at least
six months may, subject to the provisions of Section 7.9, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with Section 8.8 after
written request therefor by the Company or by any Noteholder who has been a bona
fide Holder of a Note or Notes for at least six (6) months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.9 and shall fail to resign after written request
therefor by the Company or by any such Noteholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any
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public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint
a successor Trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section 7.9, any Noteholder who has been a bona fide Holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and nominate a
successor Trustee which shall be deemed appointed as successor Trustee unless
within ten (10) days after notice to the Company of such nomination, the Company
objects thereto, in which case the Trustee so removed or any Noteholder, upon
the terms and conditions and otherwise as in Section 8.10(a) provided, may
petition any court of competent jurisdiction for an appointment of a successor
Trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 8.11.
Section 8.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 8.10 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee herein but, nevertheless, on
the written request of the Company or of its successor Trustee, the Trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.6, execute and deliver an instrument transferring to
such successor Trustee all the rights and powers of the Trustee so ceasing to
act. Upon request of any such successor Trustee, the Company shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor Trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds
held or collected by such Trustee as such, except for funds held in trust for
the benefit of Holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 8.6.
No successor Trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance, such successor Trustee shall be
qualified under the provisions of Section 8.8 and be eligible under the
provisions of Section 8.9.
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Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.11, the Company (or the former Trustee, at the written direction of
the Company) shall mail or cause to be mailed notice of the succession of such
Trustee hereunder the Holders of Notes at their addresses as they shall appear
on the Note register. If the Company fails to mail such notice within ten (10)
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Company.
Section 8.12. Succession by Merger, Etc.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including any trust created by this Indenture), shall
be the successor to the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
in the case of any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, such corporation shall be qualified
under the provisions of Section 8.8 and eligible under the provisions of Section
8.9.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee or authenticating agent appointed
by such predecessor Trustee, and deliver such Notes so authenticated and in case
at that time any of the Notes shall not have been authenticated, any successor
to the Trustee or an authenticating agent appointed by such successor Trustee
may authenticate such Notes either in the name of any predecessor Trustee
hereunder or in the name of the successor Trustee and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 8.13. Limitation on Rights of Trustee as Creditor.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of the claims
against the Company (or any such other obligor).
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1. Action by Holders.
When in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action, the Holders of such specified percentage have
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joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in Person or by Agent or proxy
appointed in writing, or (b) by the record of the Holders of Notes voting in
favor thereof at any meeting of Holders duly called and held in accordance with
the provisions of Article X, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. Whenever the
Company or the Trustee solicits the taking of any action by the Holders, the
Company or the Trustee may fix in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record
date shall be not more than 15 days prior to the date of commencement of
solicitation of such action.
Section 9.2. Proof of Execution by Holders.
Subject to the provisions of Sections 8.1, 8.2 and 10.5, proof of the
execution of any instrument by a Noteholder or his Agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The holding of Notes shall be provided by the registry of such
Notes or by a certificate of the Note Registrar.
The record of any Holders' meeting shall be proved in the manner provided
in Section 10.6.
Section 9.3. Who are Deemed Absolute Owners.
The Company, any other obligor on the Notes, the Trustee, any
authenticating agent, any Paying Agent, any Conversion Agent and any Note
Registrar may deem the Person in whose name such Note shall be registered upon
the Note register to be, and may treat him as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and interest on such Note, for
conversion of such Note and for all other purposes and neither the Company nor
any authenticating agent nor any Note Registrar shall be affected by any notice
to the contrary. All such payments so made to any Holder for the time being, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon such
Note.
Section 9.4. Company-Owned Notes Disregarded.
In determining whether the Holders of the requisite aggregate principal
amount of Notes have concurred in any direction, consent, waiver or other action
under this Indenture, Notes which are owned by the Company or any other obligor
on the Notes or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company or any other
obligor on the Notes shall be disregarded and deemed not to be outstanding for
the purpose of any such determination, provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes which a Trust Officer
knows are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as outstanding for the purpose of this
Section 9.4 if the pledgee shall establish to the satisfaction of
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the Trustee the pledgee's right to vote such Notes and that the pledgee is not
the Company, any other obligor on the Notes or a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Notes, if any, known by the Company to be owned or held by or for the
account of any of the above-described Persons and, subject to Section 8.1, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Notes not
listed therein are outstanding for the purpose of any such determination.
Section 9.5. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 9.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note which is shown by
the evidence to be included in the Notes the Holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 9.2, revoke such
action so far as it concerns such Note. Except as aforesaid, any such action
taken by the Holder of any Note shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Note and of any Notes issued in
exchange or substitution therefor, irrespective of whether any notation in
regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor.
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.1. Purpose of Meetings.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article X for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee permitted under this Indenture, or to consent to the
waiving of any default or Event of Default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of the
provisions of Article VII;
(b) to remove the Trustee and nominate a successor Trustee pursuant to
the provisions of Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
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(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Notes under any
other provision of this Indenture or under applicable law.
Section 10.2. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 10.1, to be held at such time and at such place at a
location within ten (10) miles of the Corporate Trust Office or in New York, New
York, as the Trustee shall determine. Notice of every meeting of the Holders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and the establishment of any record
date pursuant to Section 9.1, shall be mailed to Holders of Notes at their
addresses as they shall appear on the Note register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than 20 nor more
than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all
Notes then outstanding are present in Person or by proxy or if notice is waived
before or after the meeting by the Holders of all Notes outstanding, and if the
Company and the Trustee are either present by duly authorized representatives or
have, before or after the meeting, waived notice.
Section 10.3. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of at least ten percent in aggregate principal amount
of the Notes then outstanding, shall have requested the Trustee to call a
meeting of Holders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Holders may determine the time and the place at any
location within 10 miles of the Corporate Trust Office or New York, New York for
such meeting and may call such meeting to take any action authorized in Section
10.1, by mailing notice thereof as provided in Section 10.2.
Section 10.4. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a
Holder of one or more Notes on the record date pertaining to such meeting or (b)
be a Person appointed by an instrument in writing as proxy by such a Holder of
one or more Notes. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 10.5. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Notes and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other
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evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 10.3, in which case the Company or
the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote at the
meeting.
Subject to the provisions of Section 9.4, at any meeting each Noteholder or
proxy Holder shall be entitled to one vote for each $1,000 principal amount of
Notes then outstanding and held or represented by him, provided, however, that
no vote shall be cast or counted at any meeting in respect of any Note
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the proxy vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 10.2 or 10.3 may be
adjourned from time to time by the Holders of a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 10.6. Voting.
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballot on which shall be subscribed the signatures of the Holders of
Notes or of their representative by proxy and the principal amount of the Notes
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 10.2. The record shall show the
principal amount of the Notes voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.7. No Delay of Rights by Meeting.
Nothing in this Article X shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to
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make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders under any of the
provisions of this Indenture or of the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1. Supplemental Indentures Without Consent of Holders.
The Company, when authorized by resolutions of the Board of Directors
certified by its Secretary or an Assistant Secretary, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to make provisions with respect to the conversion rights of the
Holders of Notes pursuant to the requirements of Section 15.6 or the repurchase
obligations of the Company pursuant to the requirements of Section 16.5;
(b) subject to Article IV, to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Notes, any property or assets;
(c) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
XII;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the Holders of Notes, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth provided, however, that in
respect of any such additional covenants, restrictions or conditions such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Notes in
coupon form (including Notes registrable as to principal only) and to provide
for exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not materially adversely affect the
interests of the Holders;
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(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the Trust Indenture Act, or under any similar federal statue hereafter
enacted.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.1 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 11.2.
Section 11.2. Supplemental Indentures with Consent of Holders.
With the consent (evidenced as provided in Article IX) of the Holders of
not less than a majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 9.4, the Company, when
authorized by the resolutions of the Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the Holders,
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or premium, if any,
thereon, or reduce any amount payable on redemption thereof, or impair the right
of any Noteholder to institute suit for the payment thereof, or make the
principal thereof or interest or premium, if any, thereon payable in any coin or
currency other than that provided in the Notes, or modify the provisions of this
Indenture with respect to the subordination of the Notes in a manner adverse to
the Holders in any material respect, or change the obligation of the Company to
repurchase any Note upon the occurrence of a Change in Control in a manner
adverse to the Holder of Notes, or impair the right to convert the Notes into
Common Stock in any material respect, without the consent of the Holder of each
Note so affected, or (ii) reduce the aforesaid percentage of Notes, the Holders
of which are required to consent to any such supplemental indentures, without
the consent of the Holders of all Notes then outstanding.
Upon the request of the Company, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or an Assistant Secretary
authorizing the execution of any such supplemental indentures, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid the
Trustee shall join with the Company in the execution of such supplemental
indentures unless such supplemental indenture affects the Trustee's own rights,
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duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
Section 11.3. Effect of Supplemental Indenture.
Any supplemental indenture executed pursuant to the provisions of this
Article XI shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 11.3 shall not require such supplemental indenture or
the Trustee to be qualified under the Trust Indenture Act prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article XI, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Holders of Notes shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 11.4. Notation on Notes.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article XI may bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may, at the Company's expense, be prepared and executed
by the Company, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 17.11) and delivered in exchange
for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 11.5. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 8.1 and 8.2, may require
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article XI.
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ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1. Company May Consolidate Etc. on Certain Terms.
Subject to the provisions of Sections 12.2 and 16.1, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of the Company with or into any other corporation or corporations (whether or
not affiliated with the Company), or successive consolidations or mergers in
which the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance or lease (or successive sales, conveyances or
leases) of the property of the Company, substantially as an entirety, to any
other corporation (whether or not affiliated with the Company), authorized to
acquire and operate the same and which, in each case, shall be organized under
the laws of the United States of America, any state thereof or the District of
Columbia, provided, that upon any such consolidation, merger, sale, conveyance
or lease, if the Company is not the surviving entity, the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Notes, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the corporation (if other than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by the corporation which shall
have acquired or leased such property, and such supplemental indenture shall
provide for the applicable conversion rights set forth in Section 15.6.
Section 12.2. Successor Corporation to Be Substituted.
In case of any such consolidation, merger, sale, conveyance or lease
referenced in Section 12.1 and upon the assumption by any successor corporation,
by supplemental indenture required by Section 12.1, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as such. Such successor corporation
thereupon may cause to be signed and may issue either in its own name or in the
name of Atria Communities, Inc. any or all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee and, upon the order of such successor corporation instead of the Company
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes which previously shall have been signed
and delivered by the Officers of the Company to the Trustee for authentication,
and any Notes which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Notes so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Notes theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Notes had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale or
conveyance (but not in the event
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of any such lease), the Person named as the "Company" in the first paragraph of
this Indenture or any successor which shall thereafter have become such in the
manner prescribed in this Article XII shall be released from its liabilities as
obligor and maker of the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
Section 12.3. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 8.1 and 8.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Notes theretofore authenticated (other than any Notes which have been destroyed,
lost or stolen and in lieu of or in substitution for which other Notes shall
have been authenticated and delivered) and not theretofore canceled, or (b) all
the Notes not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be canceled for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, monies
sufficient to pay at maturity or upon redemption all of the Notes (other than
any Notes which shall have been mutilated, destroyed, lost or stolen and in lieu
of or in substitution for which other Notes shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due to such date of maturity or Redemption Date, as the case may be, and
if in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange and conversion of Notes, (ii) rights hereunder of
Holders to receive payments of principal of and premium, if any, and interest
on, the Notes and the other rights, duties and obligations of Holders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 17.5 and
at the cost and use of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly
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incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Notes.
Section 13.2. Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 13.4, all monies deposited with the Trustee pursuant to
Section 13.1 and not in violation of Article IV shall be held in trust for the
sole benefit of the Holders and not to be subject to the subordination
provisions of Article IV, and such monies shall be applied by the Trustee to the
payment, either directly or through any Paying Agent (including the Company if
acting as its own Paying Agent), to the Holders of the particular Notes for the
payment or redemption of which such monies have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest and
premium, if any.
Section 13.3. Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then held
by any Paying Agent for the Notes (other than the Trustee) shall, upon written
request of the Company, be repaid to the Company or paid to the Trustee, and
thereupon such Paying Agent shall be released from all further liability with
respect to such monies.
Section 13.4. Return of Unclaimed Monies.
Subject to the requirements of applicable law, any monies deposited with or
paid to the Trustee for payment of the principal of, premium, if any, or
interest on Notes and not applied but remaining unclaimed by the Holders of
Notes for two years after the date upon which the principal of, premium, if any,
or interest on such Notes, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on demand and all
liability of the Trustee shall thereupon cease with respect to such monies, and
the Holder of any of the Notes shall thereafter look only to the Company for any
payment which such Holder may be entitled to collect, except if an applicable
abandoned property law does not so permit.
Section 13.5. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.2 by reason of any order or judgment of any court of
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
13.1 until such time as the Trustee or the Paying Agent is permitted to apply
all such money in accordance with Section 13.2, provided, however, that if the
Company makes any payment of interest or premium, if any, on or principal of any
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
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ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1. Indenture and Notes Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Note, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture or in any Note,
or because of the creation of any Indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, agent, Officer, director or
subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.1. Right to Convert.
Subject to and upon compliance with the provisions of this Indenture, the
Holder of any Note shall have the right, at his option, at any time on or after
the 90th day following the latest date of original issuance of the Notes and
prior to the close of business on October 15, 2002 (except that, with respect to
any Note or portion of a Note which shall be called for redemption, such right
shall terminate, except as provided in Section 15.2 or Section 3.4, at the close
of business on the fifth Business Day preceding the date fixed for redemption of
such Note or portion of a Note, unless the Company shall default in payment due
upon redemption thereof) to convert the principal amount of any such Note, or
any portion of such principal amount which is $1,000 or an integral multiple
thereof, into that number of fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) obtained by dividing the
principal amount of the Note or portion thereof surrendered for conversion by
the Conversion Price in effect at such time, by surrender of the Note so to be
converted in whole or in part in the manner provided, together with any required
funds, in Section 15.2. A Holder of Notes is not entitled to any rights of a
Holder of Common Stock until such Holder has converted his Notes to Common
Stock, and only to the extent such Notes are deemed to have been converted to
Common Stock under this Article XV.
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Section 15.2. Exercise of Conversion Privilege; Issuance of Common Stock
on Conversion; No Adjustment for Interest or Dividends.
In order to exercise the conversion privilege with respect to any Note in
certificated form, the Holder of any such Note to be converted in whole or in
part shall surrender such Note, duly endorsed, at an office or agency maintained
by the Company pursuant to Section 5.3, accompanied by the funds, if any,
required by the penultimate paragraph of this Section 15.2, and shall give
written notice of conversion in the form provided on the Notes (or such other
notice which is acceptable to the Company) to such office or agency that the
Holder elects to convert such Note or the portion thereof specified in said
notice. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued, and shall be
accompanied by transfer taxes, if required pursuant to Section 15.7. Each such
Note surrendered for conversion shall, unless the shares issuable on conversion
are to be issued in the same name as the registration of such Note, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the Holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect to any interest
in a Note in global form, the beneficial Holder must complete the appropriate
instruction form for conversion pursuant to the Depositary's book-entry
conversion program, deliver by book-entry delivery an interest in such Note in
global form, furnish appropriate endorsements and transfer documents if required
by the Company or the Trustee or Conversion Agent, and pay the funds, if any,
required by this Section 15.2 and any transfer taxes if required pursuant to
Section 15.7.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Noteholder (as if such transfer were a transfer of the Note or Notes
(or portion thereof) so converted), the Company shall issue and shall deliver to
such Holder at the office or agency maintained by the Company for such purpose
pursuant to Section 5.3, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such Note or portion
thereof in accordance with the provisions of this Article and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion, as provided in Section 15.3. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
and subject to Section 2.3, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of the Note so surrendered, without
charge to him, a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to any such Note
(or portion thereof) on the date on which the requirements set forth above in
this Section 15.2 have been satisfied as to such Note (or portion thereof), and
the Person in whose name any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become on
said date the Holder of record of the shares represented thereby, provided,
however, that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the Person in whose name the
certificates are to be issued as the record
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Holder thereof for all purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date upon which such Note shall be surrendered.
Any Note or portion thereof surrendered for conversion during the period
from the close of business on the record date for any interest payment date to
the close of business on the Business Day next preceding the following interest
payment date shall (unless such Note or portion thereof being converted shall
have been called for redemption during the period from the close of business on
such record date to the close of business on the Business Day next preceding the
following interest payment date) be accompanied by payment, in New York Clearing
House funds or other funds acceptable to the Company, of an amount equal to the
interest payable on such interest payment date on the principal amount being
converted provided, however, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of interest on the
Notes. In the event a Note or portion thereof is called for redemption on or
after October 15, 2000 and before April 15, 2001 and the Holder elects to
convert such Note after it has been called for redemption, the Holder will be
entitled to receive interest on such Note for the period from April 15, 2000
through October 15, 2000. Except as provided above in this Section 15.2, no
adjustment shall be made for interest accrued on any Note converted or for
dividends on any shares issued upon the conversion of such Note as provided in
this Article.
Upon the conversion of an interest in a Note in global form, the Trustee,
or the Custodian at the direction of the Trustee, shall make a notation on such
Note in global form as to the reduction in the principal amount represented
thereby as a result of such conversion.
Section 15.3. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment and payment therefor in cash at the current market value
thereof to the Holder of Notes. The current market value of a share of Common
Stock shall be the Closing Price on the first Trading Day immediately preceding
the day on which the Notes (or specified portions thereof) are deemed to have
been converted.
Section 15.4. Conversion Price.
The conversion price shall be as specified in the form of Note (herein
called the "Conversion Price") attached as Exhibit A hereto, subject to
adjustment as provided in this Article XV.
Section 15.5. Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the Company as
follows:
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(a) In case the Company shall hereafter pay a dividend or make a
distribution to all Holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Price in effect at the opening of business on the date
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening
of business on the day following the date fixed for such determination. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company. If any dividend or distribution of
the type described in this Section 15.5(a) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all Holders of
its outstanding shares of Common Stock entitling them (for a period expiring
within 45 days after the date fixed for determination of stockholders entitled
to receive such rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price (as defined
below) on the date fixed for determination of stockholders entitled to receive
such rights or warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date fixed for determination of stockholders entitled
to receive such rights or warrants by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on the
date fixed for determination of stockholders entitled to receive such rights and
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered would purchase at such Current Market Price,
and of which the denominator shall be the number of shares of Common Stock
outstanding on the date fixed for determination of stockholders entitled to
receive such rights and warrants plus the total number of additional shares of
Common Stock offered for subscription or purchase. Such adjustment shall be
successively made whenever any such rights and warrants are issued, and shall
become effective immediately after the opening of business on the day following
the date fixed for determination of stockholders entitled to receive such rights
or warrants. To the extent that shares of Common Stock are not delivered after
the expiration of such rights or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually
delivered. In the event that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the Holders to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, and in
determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such
rights or warrants, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
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(c) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately reduced, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) In case the Company shall, by dividend or otherwise, distribute to all
Holders of its Common Stock shares of any class of capital stock of the Company
(other than any dividends or distributions to which Section 15.5(a) applies) or
evidences of its Indebtedness or assets (including securities, but excluding any
rights or warrants referred to in Section 15.5(b), and excluding any dividend or
distribution paid exclusively in cash (any of the foregoing hereinafter in this
Section 15.5(d) called the "Securities")), then, in each such case (unless the
Company elects to reserve such Securities for distribution to the Holders upon
the conversion of the Notes so that any such Holder converting Notes will
receive upon such conversion, in addition to the shares of Common Stock to which
such Holder is entitled, the amount and kind of such Securities which such
Holder would have received if such Holder had converted its Notes into Common
Stock immediately prior to the Record Date (as defined in Section 15.5(h) for
such distribution of the Securities)), the Conversion Price shall be reduced so
that the same shall be equal to the price determined by multiplying the
Conversion Price in effect on the Record Date (as defined below) with respect to
such distribution by a fraction of which the numerator shall be the Current
Market Price per share of the Common Stock on such Record Date less the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive, and described in a resolution of the Board of Directors) on the
Record Date of the portion of the Securities so distributed applicable to one
share of Common Stock and the denominator shall be the Current Market Price per
share of the Common Stock, such reduction to become effective immediately prior
to the opening of business on the day following such Record Date provided,
however, that in the event the then fair market value (as so determined) of the
portion of the Securities so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price of the Common Stock on the
Record Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Noteholder shall have the right to receive upon conversion the
amount of Securities such Holder would have received had such Holder converted
each Note on the Record Date. In the event that such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 15.5(d) by reference to
the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the
Current Market Price of the Common Stock.
In the event the Company implements a stockholder rights plan, such rights
plan shall provide that upon conversion of the Notes the Holders will receive,
in addition to the Common Stock issuable upon such conversion, the rights issued
under such rights plan (notwithstanding the
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occurrence of an event causing such rights to separate from the Common Stock at
or prior to the time of conversion).
Rights or warrants distributed by the Company to all Holders of Common
Stock entitling the Holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such shares of Common
Stock (ii) are not exercisable and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 15.5 (and no adjustment to the Conversion Price under
this Section 15.5 will be required) until the occurrence of the earliest Trigger
Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Price shall be made under this Section 15.5(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
Indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
Holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Price under this Section 15.5 was made, (1) in the case of any such
rights or warrants which shall all have been redeemed or repurchased without
exercise by any Holders thereof, the Conversion Price shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a Holder or Holders
of Common Stock with respect to such rights or warrants (assuming such Holder
had retained such rights or warrants), made to all Holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise by any
Holders thereof, the Conversion Price shall be readjusted as if such rights and
warrants had not been issued.
For purposes of this Section 15.5(d) and Sections 15.5(a) and (b), any
dividend or distribution to which this Section 15.5(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of Indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any further Conversion Price reduction required by this Section 15.5(d) with
respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock or
such rights or warrants (and any further Conversion Price reduction required by
Sections 15.5(a) and (b) with respect to such dividend or distribution shall
then be made), except (A) the Record Date of such dividend or distribution shall
be substituted as "the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution" and "the date fixed for such
determination" within the meaning of Sections 15.5(a) and (b), and (B) any
shares of Common Stock included in such dividend or distribution shall not
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be deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of Section 15.5(a).
(e) In case the Company shall, by dividend or otherwise, distribute to all
Holders of its Common Stock cash (excluding any cash that is distributed upon a
merger or consolidation to which Section 15.6 applies or as part of a
distribution referred to in Section 15.5(d)) in an aggregate amount that,
combined together with (1) the aggregate amount of any other such distributions
to all holders of its Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in respect of which no
adjustment pursuant to this Section 15.5(e) has been made, and (2) the aggregate
of any cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors) of consideration payable in respect of any tender offer by
the Company for all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to Section 15.5(f) has been made, exceeds 10% of
the product of the Current Market Price (determined as provided in Section
15.5(h)) on the Record Date with respect to such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date, the Conversion Price shall
be reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on such
Record Date by a fraction (i) the numerator of which shall be equal to the
Current Market Price on the Record Date less an amount equal to the quotient of
(x) the excess of such combined amount over such 10% and (y) the number of
shares of Common Stock outstanding on the Record Date and (ii) the denominator
of which shall be equal to the Current Market Price on such Record Date
provided, however, that, if the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market Price
of the Common Stock on the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Noteholder shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted such Note immediately prior to such Record Date. If such
dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
(f) In case a tender offer made by the Company or any of its subsidiaries
for all or any portion of the Common Stock expires and such tender offer (as
amended upon the expiration thereof) requires the payment to stockholders (based
on the acceptance (up to any maximum specified in the terms of the tender offer)
of Purchased Shares (as defined below)) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that, combined together with (1) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors), as of the
expiration of such tender offer, of consideration payable in respect of any
other tender offers, by the Company or any of its subsidiaries for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to this Section 15.5(f) has been made and (2) the aggregate amount of any
distributions to all Holders of the Common Stock made exclusively in
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cash within 12 months preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to Section 15.5(e) has been made,
exceeds 10% of the product of the Current Market Price (determined as provided
in Section 15.5(h)) as of the last time (the "Expiration Time") tenders could
have been made pursuant to such tender offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any tendered shares) at
the Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the close of business on the date of the Expiration Time by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction (if any) to become effective
immediately prior to the opening of business on the day following the Expiration
Time. If the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such tender offer had not been made. If the application of this
Section 15.5(f) to any tender offer would result in an increase in the
Conversion Price, no adjustment shall be made for such tender offer under this
Section 15.5(f).
(g) In case of a tender or exchange offer made by a Person other than the
Company or any subsidiary of the Company for an amount which increases the
offeror's ownership of Common Stock to more than 25% of the Common Stock
outstanding and shall involve the payment by such Person of consideration per
share of Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) at the Expiration Time that exceeds the
Current Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, and in which, as of the Expiration Time the Board of Directors
is not recommending rejection of the offer, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) on the Expiration Time
multiplied by the current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time and the denominator shall be the sum of (x)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of shares of Common Stock
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outstanding (less any Purchased Shares) on the Expiration Time and the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Expiration Time, such reduction to become effective as of immediately prior to
the opening of business on the day following the Expiration Time. In the event
that such Person is obligated to purchase shares pursuant to any such tender or
exchange offer, but such Person is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 15.5(g) shall not be made
if, as of the Expiration Time, the offering documents with respect to such offer
disclose a plan or intention to cause the Company to engage in any transaction
described in Article XII.
(h) For purposes of this Section 15.5, the following terms shall have the
meaning indicated:
(1) "Closing Price" with respect to any securities on any day shall mean
the closing sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal national
security exchange or quotation system on which such security is quoted or listed
or admitted to trading, or, if not quoted or listed or admitted to trading on
any national securities exchange or quotation system, the average of the closing
bid and asked prices of such security on the over-the-counter market on the day
in question as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors for that purpose, or a price determined
in good faith by the Board of Directors or, to the extent permitted by
applicable law, a duly authorized committee thereof, whose determination shall
be conclusive.
(2) "Current Market Price" shall mean the average of the daily Closing
Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to the date in question provided, however, that (1) if the
"ex" date (as hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
Conversion Price pursuant to Section 15.5(a), (b), (c), (d), (e), (f) or (g)
occurs during such ten consecutive Trading Days, the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction by which the Conversion
Price is so required to be adjusted as a result of such other event, (2) if the
"ex" date for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Section 15.5(a), (b), (c), (d), (e), (f) or (g) occurs on or after the "ex" date
for the issuance or distribution requiring such computation and prior to the day
in question, the Closing Price for each Trading Day on and after the "ex" date
for such other event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, and (3) if the "ex" date for the
issuance or distribution requiring such computation is prior to the day in
question, after taking into account any adjustment required pursuant to clause
(1) or (2) of this proviso, the Closing Price for each Trading Day on or after
such "ex" date shall be adjusted by
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adding thereto the amount of any cash and the fair market value (as determined
by the Board of Directors or, to the extent permitted by applicable law, a duly
authorized committee thereof in a manner consistent with any determination of
such value for purposes of Section 15.5(d), (f) or (g), whose determination
shall be conclusive and described in a resolution of the Board of Directors or
such duly authorized committee thereof, as the case may be) of the evidences of
Indebtedness, shares of capital stock or assets being distributed applicable to
one share of Common Stock as of the close of business on the day before such
"ex" date. For purposes of any computation under Section 15.5(f) or (g), the
Current Market Price of the Common Stock on any date shall be deemed to be the
average of the daily Closing Prices per share of Common Stock for such day and
the next two succeeding Trading Days provided, however, that if the "ex" date
for any event (other than the tender or exchange offer requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Section 15.5(a), (b), (c), (d), (e), (f) or (g) occurs on or after the
Expiration Time for the tender or exchange offer requiring such computation and
prior to the day in question, the Closing Price for each Trading Day on and
after the "ex" date for such other event shall be adjusted by multiplying such
Closing Price by the reciprocal of the fraction by which the Conversion Price is
so required to be adjusted as a result of such other event. For purposes of
this paragraph, the term "ex" date, (1) when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades regular
way on the relevant exchange or in the relevant market from which the Closing
Price was obtained without the right to receive such issuance or distribution,
(2) when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on such
exchange or in such market after the time at which such subdivision or
combination becomes effective, and (3) when used with respect to any tender or
exchange offer means the first date on which the Common Stock trades regular way
on such exchange or in such market after the Expiration Time of such offer.
(3) "fair market value" shall mean the amount which a willing buyer would
pay a willing seller in an arm's length transaction.
(4) "Record Date" shall mean, with respect to any dividend, distribution or
other transaction or event in which the Holders of Common Stock have the right
to receive any cash, securities or other property or in which the Common Stock
(or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable security is listed or
admitted for trading on the New York Stock Exchange, the Nasdaq Stock Market
(National Market) or another national security exchange, a day on which the New
York Stock Exchange, the Nasdaq Stock Market (National Market) or another
national security exchange is open for business or (y) if the applicable
security is quoted on the Nasdaq National Market, a day on which trades may be
made thereon or (z) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or executive order to close.
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(i) The Company may make such reductions in the Conversion Price, in
addition to those required by Sections 15.5(a), (b), (c), (d), (e), (f) and (g),
as the Board of Directors considers to be advisable to avoid or diminish any
income tax to Holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to time
may reduce the Conversion Price by any amount for any period of time if the
period is at least 20 days, the reduction is irrevocable during the period and
the Board of Directors shall have made a determination that such reduction would
be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to Holders of record of the Notes a notice of
the reduction at lease 15 days prior to the date the reduced Conversion Price
takes effect, and such notice shall state the reduced Conversion Price and the
period during which it will be in effect.
(j) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1.00% in such price
provided, however, that any adjustments which by reason of this Section 15.5(j)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article XV shall be made
by the Company and shall be made to the nearest cent or to the nearest one
hundredth of a share, as the case may be.
(k) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which each adjustment becomes
effective and shall mail notice of such adjustment of the Conversion Price to
the Holder of each Note at his last address appearing on the Note register
provided for in Section 2.5 of this Indenture, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(l) In any case in which this Section 15.5 provides that an adjustment
shall become effective immediately after a record date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Holder of any
Note converted after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above such conversion by reason
of the adjustment required by such event and above the Common Stock issuable
upon such conversion before giving effect to such adjustment and (ii) paying to
such Holder any amount in cash in lieu of any fraction pursuant to Section 15.5.
(m) For purposes of this Section 15.5, the number of shares of Common Stock
at any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common
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Stock. The Company will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.
Section 15.6. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 15.5(c) applies), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which Holders
of Common Stock shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such Common Stock,
or (iii) any sale or conveyance of the properties and assets of the Company as,
or substantially as, an entirety to any other corporation as a result of which
Holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, then the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture) providing that such Notes shall be convertible
into the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a Holder of a number
of shares of Common Stock issuable upon conversion of such Notes (assuming, for
such purposes, a sufficient number of authorized shares of Common Stock
available to convert all such Notes) immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance assuming such
Holder of Common Stock did not exercise his rights of election, if any, as to
the kind or amount of shares of stock and other securities or property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance (provided that, if the kind or amount of
shares of stock and other securities or property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance is not the same for each share of Common Stock
in respect of which such rights of election shall not have been exercised
("nonelecting share"), then for the purposes of this Section 15.6 the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of the non-
electing shares. Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder of Notes, at his address appearing on the
Note register provided for in Section 2.5 of this Indenture, within 20 days
after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
If this Section 15.6 applies to any event or occurrence, Section 15.5 shall
not apply.
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Section 15.7. Taxes on Shares Issued.
The issue of stock certificates on conversions of Notes shall be made
without charge to the converting Noteholder for any tax in respect of the issue
thereof. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
stock in any name other than that of the Holder of any Note converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 15.8. Reservation of Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for the conversion of the Notes from time to time as
such Notes are presented for conversion.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue shares of such Common Stock at such
adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Notes will upon issue be fully paid and non-assessable by the
Company and free from all taxes, liens and charges with respect to the issue
thereof.
The Company covenants that if any shares of Common Stock to be provided for
the purpose of conversion of Notes hereunder require registration with or
approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that if at any time the Common Stock shall be
listed on the New York Stock Exchange, the Nasdaq Stock Market (National
Market), or any other national securities exchange the Company will, if
permitted by the rules of such exchange, list and keep listed so long as the
Common Stock shall be so listed on such exchange, all Common Stock issuable upon
conversion of the Notes.
Section 15.9. Responsibility of Trustee.
The Trustee and any other Conversion Agent shall not at any time be under
any duty or responsibility to any Holder of Notes to either calculate the
Conversion Price or determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making
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the same. The Trustee and any other Conversion Agent shall not be accountable
with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Note and the Trustee and any other
Conversion Agent make no representations with respect thereto. Subject to the
provisions of Section 8.1, neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the Company contained
in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 15.6 relating either to the kind or amount of
shares of stock or securities or property (including cash) receivable by Holders
upon the conversion of their Notes after any event referred to in such Section
15.6 or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 8.1, may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee prior
to the execution of any such supplemental indenture) with respect thereto.
Section 15.10. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution) on its
Common Stock that would require an adjustment in the Conversion Price pursuant
to Section 15.5; or
(b) the Company shall authorize the granting to all or substantially all
the Holders of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of the
Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company,
the Company shall cause to be filed with the Trustee and to be mailed to each
Holder of Notes at his address appearing on the Note register provided for in
Section 2.5 of this Indenture, as promptly as possible but in any event at least
15 days prior to the applicable date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, or rights or
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warrants are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective or occur, and the date as of which it is expected
that Holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliver-able upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.
ARTICLE XVI
REPURCHASE OF NOTES AT OPTION OF THE HOLDER
UPON CHANGE IN CONTROL
Section 16.1. Right to Require Repurchase.
In the event that a Change in Control (as hereinafter defined) shall occur,
then each Holder shall have the right, at the Holder's option, to require the
Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Notes, or any portion of the principal amount
thereof that is an integral multiple of $1,000 (provided that no single Note may
be repurchased in part unless the portion of the principal amount of such Note
to be outstanding after such repurchase is equal to $1,000 or an integral
multiple of $1,000), on the date (the "Repurchase Date") that is 30 days after
the date of the Company Notice (as defined in Section 16.2) for cash at a
purchase price equal to 100% of the principal amount (the "Repurchase Price")
plus interest accrued and unpaid to, but excluding, the Repurchase Date. If the
Repurchase Date is between a record date for an interest payment date and such
interest payment date, then the interest payable on such interest payment date
shall be paid to the Holder of Record of the Note on such Repurchase Date.
Whenever in this Indenture there is a reference, in any context, to the
principal of any Note as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Note to the extent
that such Repurchase Price is, was or would be so payable at such time, and
express mention of the Repurchase Price in any provision of this Indenture shall
not be construed as excluding the Repurchase Price in those provisions of this
Indenture when such express mention is not made.
Section 16.2. Notices; Method of Exercising Purchase Right, Etc.
(a) Unless the Company shall have theretofore called for redemption all of
the outstanding Notes pursuant to Article III, on or before the 15th day after
the occurrence of a Change in Control, the Company or, at the written request of
the Company on or before the tenth (10th) day after receipt of such request, the
Trustee, shall give to all Holders of Notes notice (the "Company Notice") of the
occurrence of the Change in Control and of the repurchase right set forth herein
arising as a result thereof. The Company shall also deliver a copy of such
notice of a repurchase right to the Trustee.
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Each Company Notice shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must follow to exercise a
repurchase right,
(5) that on the Repurchase Date the Repurchase Price will become due and
payable upon each such Note designated by the Holder to be repurchased, and that
interest thereon shall cease to accrue on and after said date,
(6) the Conversion Price, the date on which the right to convert the Notes
to be repurchased will terminate and the places where such Notes may be
surrendered for conversion, and
(7) the place or places where such Notes are to be surrendered for payment
of the Repurchase Price and accrued interest, if any.
No failure of the Company to give the foregoing notices or defect therein
shall limit any Holder's right to exercise a repurchase right or affect the
validity of the proceedings for the repurchase of Notes.
If any of the foregoing provisions or other provisions of this Article are
inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the Trustee
or any Paying Agent on or before the 30th day after the date of the Company
Notice (i) written notice of the Holder's exercise of such right, which notice
shall set forth the name of the Holder, the principal amount of the Notes to be
repurchased (and, if any Note is to be repurchased in part, the serial number
thereof, the portion of the principal amount thereof to be repurchased and the
name of the Person in which the portion thereof to remain outstanding after such
repurchase is to be registered) and a statement that an election to exercise the
repurchase right is being made thereby, and (ii) the Notes with respect to which
the repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance with
the terms hereof, the Company shall pay or cause to be paid to the Trustee or
the Paying Agent the Repurchase Price in cash, for payment to the Holder on the
Repurchase Date, together with accrued and unpaid interest to, but excluding,
the Repurchase Date payable with respect to the Notes as to which the repurchase
right has been exercised.
(d) If any Note (or portion thereof) surrendered for repurchase shall not
be so paid on the Repurchase Date, the principal amount of such Note (or portion
thereof, as the case may be) shall, until paid, bear interest from the
Repurchase Date at the rate of 5.0% per annum, and each
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Note shall remain convertible into Common Stock until the principal of such Note
(or portion thereof, as the case may be) shall have been paid or duly provided
for.
(e) Any Note which is to be repurchased only in part shall be surrendered
to the Trustee (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Note without service charge, a new Note or
Notes, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the
portion of the principal of the Note so surrendered that was not repurchased.
(f) Any Holder that has delivered to the Trustee its written notice
exercising its right to require the Company to repurchase its Notes upon a
Change in Control shall have the right to withdraw such notice at any time prior
to the close of business on the Repurchase Date by delivery of a written notice
of withdrawal to the Trustee prior to the close of business on such date. A
Note in respect of which a Holder is exercising its option to require repurchase
upon a Change in Control may be converted into Common Stock in accordance with
Article XV only if such Holder withdraws its notice in accordance with the
preceding sentence.
Section 16.3. Certain Definitions.
For purposes of this Article XVI,
(a) the term "beneficial owner" shall be determined in accordance with Rule
13d-3 promulgated by the Commission pursuant to the Exchange Act; and
(b) the term "Person" shall include any syndicate or group which would be
deemed to be a "Person" under Section 13(d)(3) of the Exchange Act.
Section 16.4. Change in Control.
A "Change in Control" shall be deemed to have occurred at such time after
the original issuance of the Notes as:
(a) any Person, other than the Company, any subsidiary of the Company or
any entity Controlled (as defined below) by the foregoing, or any employee
benefit plan of the Company or any such subsidiary, is or becomes the beneficial
owner, directly or indirectly, through a purchase or other acquisition
transaction or series of transactions (other than a merger or consolidation
involving the Company), of shares of capital stock of the Company entitling such
Person to exercise in excess of 50% of the total voting power of all shares of
capital stock of the Company entitled to vote generally in the election of
directors;
(b) there occurs any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company,
or any sale or transfer of the assets of the Company as, or substantially as, an
entirety to another Person (other than (i) any such transaction pursuant to
which the Holders of the Common Stock immediately prior to such
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transaction have, directly or indirectly, shares of capital stock of the
continuing or surviving corporation immediately after such transaction which
entitle such Holders to exercise in excess of 50% of the total voting power of
all shares of capital stock of the continuing or surviving corporation entitled
to vote generally in the election of directors and (ii) any merger (1) which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock or (2) which is effected solely to change the
jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares
of Common Stock and separate series of Common Stock carrying substantially the
same relative rights as the Common Stock); or
(c) a change in the Board of Directors of the Company in which the
individuals who constituted the Board of Directors of the Company at the
beginning of the one-year period immediately preceding such change (together
with any other director whose election by the Board of Directors of the Company
or whose nomination for election by the stockholders of the Company was approved
by a vote of at least a majority of the directors then in office either who were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office; provided, however, that a Change in
Control shall not be deemed to have occurred if either (a) the Closing Price per
share of the Common Stock for any ten (10) Trading Days within the period of 20
consecutive Trading Days ending immediately before the Change in Control shall
equal or exceed 105% of the Conversion Price in effect on each such Trading Day,
or (b) (i) at least 90% of the consideration (excluding cash payments for
fractional shares) in the transaction or transactions constituting the Change in
Control consists of shares of Common Stock with full voting rights traded on a
national securities exchange or quoted on the Nasdaq National Market (or which
will be so traded or quoted when issued or exchanged in connection with such
Change in Control) (such securities being referred to as "Publicly Traded
Securities") and as a result of such transaction or transactions such Notes
become convertible solely into such Publicly Traded Securities and (ii) the
consideration in the transaction or transactions constituting the Change of
Control consists of cash, Publicly Traded Securities or a combination of cash
and Publicly Traded Securities with an aggregate fair market value (which, in
the case of Publicly Traded Securities, shall be equal to the average Closing
Price of such Publicly Traded Securities during the ten (10) consecutive Trading
Days, commencing with the sixth Trading Day, following consummation of the
transaction or transactions constituting the Change in Control) is at least 105%
of the Conversion Price in effect on the date immediately preceding the date of
consummation of such Change in Control. The term "Controlled" shall mean
ownership or control of more than 50% of the voting power of such entity.
Section 16.5. Consolidation, Merger, Etc.
In the case of any reclassification, change, consolidation, merger,
combination, sale or conveyance to which Section 15.6 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive shares of stock and other securities or property or assets (including
cash) which includes shares of Common Stock of the Company or Common Stock of
another Person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or
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exchange becomes effective in excess of 50% of the aggregate fair market value
of such shares of stock and other securities, property and assets (including
cash) (as determined by the Company, which determination shall be conclusive and
binding), then the Person formed by such consolidation or resulting from such
merger or combination or which acquires the properties or assets (including
cash) of the Company, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
modifying the provisions of this Indenture relating to the right of Holders to
cause the Company to repurchase the Notes following a Change in Control,
including without limitation the applicable provisions of this Article XVI and
the definitions of the Common Stock and Change in Control, as appropriate, and
such other related definitions set forth herein as determined in good faith by
the Company (which determination shall be conclusive and binding), to make such
provisions apply to the Common Stock and the issuer thereof if different from
the Company and Common Stock of the Company (in lieu of the Company and the
Common Stock of the Company).
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.1. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements by the Company
contained in this Indenture shall bind its successors and assigns whether so
expressed or not.
Section 17.2. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or Officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or Officer of any corporation that shall at the time be
the lawful sole successor of the Company.
Section 17.3. Addresses for Notices, Etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the Holders of Notes on
the Company shall be deemed to have been sufficiently given or made, for all
purposes, if given or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address is
filed by the Company with the Trustee) to Atria Communities, Inc., 515 West
Market Street, Louisville, Kentucky 40202. Any notice, direction, request or
demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed to the Corporate Trust Office, which office is, at the date
as of which this Indenture is dated, located at 500 West Jefferson Street,
Louisville, Kentucky 40202, Attention: Corporate Trust Department.
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The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him
by first class mail, postage prepaid, at his address as it appears on the Note
register and shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Section 17.4. Governing Law.
This Indenture and each Note shall be deemed to be a contract made under
the laws of the Commonwealth of Kentucky and for all purposes shall be construed
in accordance with the laws of the Commonwealth of Kentucky.
Section 17.5. Evidence of Compliance with Conditions Precedent Certificates
to Trustee.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with, and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition (2) a brief statement
as to the nature and scope of the examination or investigation upon which the
statement or opinion contained in such certificate or opinion is based (3) a
statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with and (4) a
statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Section 17.6. Legal Holidays.
In any case where the date of maturity of interest on or principal of the
Notes or the date fixed for redemption or repurchase of any Note will not be a
Business Day, then payment of such interest on or principal of the Notes need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the date
fixed for redemption or repurchase, and no interest shall accrue for the period
from and after such date.
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Section 17.7. Trust Indenture Act.
This Indenture is hereby made subject to, and shall be governed by, the
provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act provided, however, that,
unless otherwise required by law, notwithstanding the foregoing, this Indenture
and the Notes issued hereunder shall not be subject to the provisions of
subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust Indenture Act
as now in effect or as hereafter amended or modified provided, further, that
this Section 17.7 shall not require this Indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in an indenture qualified under the
Trust Indenture Act, such required provision shall control.
Section 17.8. No Security Interest Created.
Nothing in this Indenture or in the Notes, expressed or implied, shall be
construed to constitute a security interest under the Uniform Commercial Code or
similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction where property of the Company or its subsidiaries is located.
Section 17.9. Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or implied, shall give
to any Person, other than the parties hereto, any Paying Agent, any
authenticating agent, any Custodian, any Conversion Agent, any Note Registrar
and their successors hereunder, the Holders of Notes and the Holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 17.10. Table of Contents, Headings, Etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 17.11. Authenticating Agent.
The Trustee may appoint an authenticating agent which shall be authorized
to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers
and exchanges of Notes hereunder, including under Sections 2.4, 2.5, 2.6, 2.7,
3.3, 15.2 and 16.2, as fully to all intents and purposes as though the
authenticating agent had been expressly authorized by this Indenture and those
Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by the authenticating agent shall be
deemed to be authentication and delivery of such Notes "by the Trustee" and a
certificate of authentication executed on behalf of the Trustee by an
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authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Notes for the Trustee's certificate of authentication. Such authenticating
agent shall at all times be a Person eligible to serve as Trustee hereunder
pursuant to Section 8.9.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 17.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible under this Section, the
Trustee shall either promptly appoint a successor authenticating agent or itself
assume the duties and obligations of the former authenticating agent under this
Indenture, and upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all Holders of Notes as the names and
addresses of such Holders appear on the Note register.
The Trustee agrees to pay to the authenticating agent from time to time
reasonable compensation for its services (to the extent pre-approved by the
Company in writing), and the Trustee shall be entitled to be reimbursed for such
pre-approved payments, subject to Section 8.6.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this Section 17.11 shall
be applicable to any authenticating agent.
Section 17.12. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such countervails shall together constitute but one
and the same instrument.
-79-
<PAGE>
PNC Bank, Kentucky, Inc. hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed, all as of the date first written above.
Attest: Atria Communities, Inc.
/s/ J. Timothy Wesley By: /s/ W. Patrick Mulloy, II
- ------------------------------ -------------------------------------
Title: Chief Financial Officer W. Patrick Mulloy, II
President and Chief Executive Officer
Attest: PNC Bank, Kentucky, Inc., as Trustee
/s/ David G. Metcalf By: /s/ Jack R. Cornwall
- ------------------------------ -------------------------------------
Title: Vice President Name: Jack R. Cornwall
Title: Assistant Vice President
-80-
<PAGE>
EXHIBIT A
---------
[For Global Note only:]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY," WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. (OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[For all Notes:]
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS, 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 AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) or (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED
HEREBY AND THE LAST DATE ON WHICH ATRIA COMMUNITIES, INC. (THE "COMPANY") OR ANY
"AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS
THE OWNER OF THE NOTE (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION
OF SUCH NOTE 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 INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO PNC BANK,
KENTUCKY, INC., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON
<PAGE>
TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM SUCH TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 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 A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE THE
RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS NOTE TO PNC BANK, KENTUCKY, INC., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E)
ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO PNC BANK, KENTUCKY,
INC., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS IT 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.
THIS LEGEND WILL BE REMOVED UPON ANY TRANSFER OF THE NOTE EVIDENCED HEREBY
UPON OR AFTER THE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-2
<PAGE>
ATRIA COMMUNITIES, INC.
5.0% CONVERTIBLE SUBORDINATED NOTE DUE 2002
No. _______ CUSIP [_____]
Atria Communities, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware (herein called the "Company"), which
term includes any successor corporation under the indenture referred to on the
reverse hereof, for value received hereby promises to pay to _____________ [for
global Note, insert: CEDE & CO.] or registered assigns, the principal sum of
[___________ ($____________)] [for Global Note only (as increased or decreased
from time to time in accordance with the procedures of DTC)] on October 15,
2002, at the office or agency of the Company maintained for that purpose in New
York, New York, or, at the option of the Holder of this Note, at the Corporate
Trust Office, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay interest, semi-annually on April 15 and October 15 of each
year, commencing April 15, 1998, on said principal sum at said office or agency,
in like coin or currency, at the rate per annum of 5.0%, from the date of this
Note. The interest payable on this Note pursuant to the Indenture on any April
15 or October 15 will be paid to the person in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on the record
date, which shall be the April 1 or October 1 (whether or not a Business Day)
next preceding such April 15 or October 15, as provided in the Indenture,
provided that any such interest not punctually paid or duly provided for shall
be payable as provided in the Indenture. Interest may, at the option of the
Company, be paid at the Trustee's Corporate Trust Office or by check mailed to
the address of such person on the Note register.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, including, without limitation, provisions subordinating the
payment of principal of and premium, if any, and interest on the Notes to the
prior payment in fully of all Senior Indebtedness, as defined in the Indenture,
and provisions giving the Holder of this Note the right to convert this Note
into Common Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the
Commonwealth of Kentucky, and for all purposes shall be construed in accordance
with and governed by the laws of said State.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
under its corporate seal.
DATED:
----------------------
Attest: Atria Communities, Inc.
By:
- ----------------------------- -------------------------------------
Title: W. Patrick Mulloy, II
President and Chief Executive Officer
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
PNC BANK, KENTUCKY, INC., AS TRUSTEE
By:
-------------------------
Name:
Title:
A-4
<PAGE>
[FORM OF REVERSE OF NOTE]
ATRIA COMMUNITIES, INC.
5.0% CONVERTIBLE SUBORDINATED NOTE DUE 2002
1. This Note is one of a duly authorized issue of Notes of the Company,
designated as its 5.0% Convertible Subordinated Notes due 2002 (herein called
the "Notes"), limited to aggregate principal amount of $125,000,000
($143,750,000 if the over-allotment option is exercised in full) issued or to be
issued under and pursuant to an indenture dated as of October 16, 1997 (herein
called the "Indenture"), between the Company and PNC Bank, Kentucky, Inc., as
trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders.
2. In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of and accrued interest on all Notes
may be declared, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
3. The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes as the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount thereof or premium,
if any, thereon, or reduce any amount payable on redemption thereof, or impair
the right of any Noteholder to institute suit for the payment thereof, or make
the principal thereof or interest or premium, if any, thereon payable in any
coin or currency other than that provided in the Note, or modify the provisions
of the Indenture with respect to the subordination of the Notes in a manner
adverse to the Holders in any material respect, or change the obligation of the
Company to repurchase any Note upon the occurrence of a change in control in a
manner adverse to the Holder of the Notes, or impair the right to convert the
Notes into Common Stock in any material respect, without the consent of the
Holder of each Note so affected or (ii) reduce the aforesaid percentage of
Notes, the Holders of which are required to consent to any such supplemental
Indenture, without the consent of the Holders of all Notes then outstanding. It
is also provided in the Indenture that the Holders of a majority in aggregate
principal amount of the Notes at the time outstanding may on behalf of the
Holders of all of the Notes waive any past default or Event of Default under the
Indenture and its consequences except (i) a default in the payment of interest
or any premium, if any, on, or the principal of, the notes, (ii) a failure by
the Company to convert any Notes into Common Stock, (iii) a default in the
payment of the Redemption Price pursuant to article iii or repurchase price
A-5
<PAGE>
pursuant to Article XVI or (iv) a default in respect of a covenant or provisions
which under Article XI cannot be modified or amended without the consent of the
Holders of all Notes then outstanding. Any such consent or waiver by the Holder
of this Note (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners of this Note
and any Notes which may be issued in exchange or substitute hereof, irrespective
of whether or not any notation thereof is made upon this Note or such other
Notes.
4. The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
as defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred, and this Note is issued subject to the provisions of the
Indenture with respect to such subordination. Each Holder of this Note by
accepting the same, agrees to and shall be bound by such provisions and
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and appoints the Trustee
his attorney-in-fact for such purpose.
5. No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the place, at the respective times, at the rate and in the coin
or currency herein prescribed.
6. Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
7. The Notes are issuable in registered form without coupons in minimum
denominations of $1,000 ($100,000 in the case of Notes issued pursuant to
Regulation D under the Securities Act) and any integral multiple of $1,000. At
the office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
8. The Notes will not be redeemable at the option of the Company prior to
October 15, 2000. At any time after October 15, 2000, and prior to maturity,
the Notes may be redeemed at the option of the Company from time to time, as a
whole or in part, upon mailing a notice of such redemption not less than 15 nor
more than 60 days before the date fixed for redemption to the Holders of Notes
at their registered addresses, all as provided in the Indenture, at the
following optional Redemption Prices (expressed as percentages of the principal
amount), together in each case with accrued interest to, but excluding, the date
fixed for redemption.
A-6
<PAGE>
9. If redeemed during the 12-month period beginning October 15:
Year Percentage
---- ----------
2000 102%
2001 101%
and 100% at October 15, 2002 provided that if the date fixed for redemption is
on April 15 or October 15, then the interest payable on such date shall be paid
to the Holder of record of the Note on the next preceding April 1 or October 1,
respectively.
10. The Notes are not subject to redemption through the operation of any
sinking fund.
11. Subject to the provisions of the Indenture, the Holder hereof has the
right, at its option, at any time after the 90th day following the latest date
of original issuance of the Notes and prior to the close of business on the
maturity date, subject to prior redemption or repurchase, or, as to all or any
portion hereof called for redemption, prior to the close of business on the
fifth Business day preceding the date fixed for redemption (unless the Company
shall default in payment due upon redemption thereof), to convert the principal
hereof or any portion of such principal which is $1,000 or an integral multiple
thereof, into that number of shares of the Company's Common Stock, said shares
shall be constituted at the date of conversion, obtained by dividing the
principal amount of this Note or portion thereof to be converted by the
Conversion Price of $20.864, as such Conversion Price is adjusted from time to
time as provided in the Indenture, upon surrender of this Note, together with a
conversion notice as provided in the Indenture, to the Company at the office or
agency of the Company maintained for that purpose in New York, New York, or at
the option of such Holder, the Corporate Trust Office, and, unless the shares
issuable on conversion are to be issued in the same name as this Note, duly
endorsed by, or accompanied by instruments of transfer in form satisfactory to
the Company duly executed by, the Holder or by his duly authorized attorney. No
adjustment in respect of interest or dividends will be made upon any conversion
provided, however, that if this Note shall be surrendered for conversion during
the period from the close of business on any record date for the payment of
interest to the close of business on the Business Day preceding the interest
payment date, this note (unless it or the portion being converted shall have
been called for redemption during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day preceding the interest payment date) must be accompanied by an amount, in
New York Clearing House funds or other funds acceptable to the Company, equal to
the interest payable on such interest payment date on the principal amount being
converted (provided however, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of interest on the
Notes), provided further, however, that in the event a Note or portion thereof
is called for redemption on or after October 15, 2000 and before April 15, 2001
and the Holder elects to convert such Note after it has been called for
redemption, the holder will be entitled to receive interest on such Note for the
period from April 15, 2000 through October 15, 2000. No fractional shares will
be issued upon any conversion, but an adjustment in cash will be made, as
provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for conversion.
A-7
<PAGE>
12. Any Notes called for redemption, unless surrendered for conversion on
or before the close of business on the date fixed for redemption, may be deemed
to be purchased from the Holder of such Notes at an amount equal to the
applicable Redemption Price, together with accrued interest to the date fixed
for redemption, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Notes from the Holders thereof and
convert them into Common Stock of the Company and to make payment for such Notes
as aforesaid to the Trustee in trust for such Holders.
13. Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in New York, New York or, at the option of the
Holder of this Note, at the Corporate Trust Office, a new Note or Notes of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange thereof, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
14. The Company, the Trustee, any authenticating agency, any paying agent,
any conversion agent and any Note Registrar may deem and treat the registered
Holder hereof as the absolute owner of this Note (whether or Note this Note
shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment hereof, or on account hereof, for
the conversion hereof and for all other purposes, and neither the Company nor
the Trustee nor any other authenticating agent nor any paying agent nor any
other conversion agent nor any Note Registrar shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered Holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Note.
15. No recourse for the payment of the principal or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, officer, director
or subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration of the issue
hereof, expressly waived and released.
16. Terms used in this Note and defined in the Indenture are used herein
as therein defined.
A-8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN as tenants in UNIF GIFT MIN ACT ______Custodian_______
COM- common (Cust) (Minor)
TEN ENT- as tenants by the
entireties
JT TEN- as joint tenants with under Uniform Gifts to Minors Act
right to survivorship
and not as tenants in
common ----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
A-9
<PAGE>
CONVERSION NOTICE
To: ATRIA COMMUNITIES, INC.
The undersigned registered owner of this Note hereby irrevocably exercises
the option to convert this Note, or the portion hereof (which is $1,000 or an
integral multiple thereof) below designated, into shares of Common Stock of
Atria Communities, Inc. in accordance with the terms of the Indenture referred
to in this Note, and directs that the shares issuable and deliverable upon such
conversion, together with any check in payment for fractional shares and any
Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered Holder hereof unless a different name has been
indicated below. If shares or any portion of this Note not converted are to be
issued in the name of a Person other than the undersigned, the undersigned will
check the appropriate box below and pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of
interest accompanies this Note.
Dated: ______________________ _________________________________________
(Name(s))
_______________________________________
(Signature(s))
Signature(s) must be guaranteed by an eligible Guarantor Institution
(banks, stock brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to
be issued, or Notes to be delivered, other than to and in the name of the
registered Holder.
_______________________________________
Signature Guarantee
Fill in for registration of shares of Common Stock if to be issued, and
Notes it to be delivered, other than to and in the name of the registered
Holder:
_________________________
(Name)
_________________________
(Street Address)
_________________________
(City, State and Zip Code)
Please print name and address
Principal amount to be converted (if less than
all): $________________
_______________________________________
Social Security or Other Taxpayer ID Number
A-10
<PAGE>
ASSIGNMENT
For value received _______ hereby sell(s), assign(s) and transfer(s) unto ______
________________________________________________________________________________
(Please insert name, social security or other
Taxpayer Identification Number of assignee)
the within Note, and hereby irrevocably constitutes and appoints _______________
________________________________________________________________________________
attorney to transfer the said Note on the Books of the Company, with power of
substitution in the premises.
In connection with any transfer of the within Note within two years of the
date of original issuance of such Note, the undersigned confirms that such Note
is being transferred:
[_] To Atria Communities, Inc. or a subsidiary thereof; or
[_] Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
[_] To an Institutional Accredited Investor pursuant to and in compliance
with the Securities Act of 1933, as amended; or
[_] Pursuant to and in compliance with Regulation S under the Securities
Act of 1933, as amended; or
[_] Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate").
[_] The transferee is an Affiliate of the Company;
Dated:
-----------------------
-----------------------------------------
(Name(s))
-----------------------------------------
(Signature(s))
Signature(s) must be guaranteed by an eligible Guarantor Institution
(banks, stock brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to
be issued, or Notes to be delivered, other than to and in the name of the
registered Holder.
-----------------------------------------
Signature Guarantee
A-11
<PAGE>
OPTION TO ELECT REPURCHASE
UPON A CHANGE IN CONTROL
To: ATRIA COMMUNITIES, INC.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Atria Communities, Inc. (the Company") as
to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to repay the entire principal amount of this
Note, or the portion thereof (which is $1,000 or an integral multiple thereof)
below designated, in accordance with the terms of the Indenture referred to in
this Note at the repurchase price, together with accrued interest to, but
excluding, such date, to the registered Holder hereof.
Dated: ______________________
________________________________________
(Name(s))
________________________________________
(Signature(s))
NOTICE: The above signatures of the Holder(s) hereof must correspond with
the name as written upon the face of the Note in every particular without
alteration, enlargement or any change whatever.
Principal amount to be repurchased (if less
than all):
$______________
________________________________________
Social Security or Other Taxpayer ID Number
A-12
<PAGE>
EXHIBIT 99.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of October 16, 1997, by and among Atria Communities, Inc., a Delaware
corporation (the "Company"), BT Alex. Brown Incorporated, Donaldson, Lufkin &
Jenrette Securities Corporation, Morgan Stanley & Co. Incorporated, Smith Barney
Inc. and J.C. Bradford & Co. (collectively, the "Initial Purchasers") pursuant
to the Purchase Agreement dated as of October 9, 1997 (the "Purchase
Agreement"), between the Company and the Initial Purchasers. In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the holders from time to time of
the Notes (including the Initial Purchasers) and the holders from time to time
of the Common Stock issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
Affiliate: With respect to any specified Person, (i) any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person or (ii) any officer or director of
such other Person. For purposes of this definition, the term "control" of a
Person means the possession, direct or indirect, of the power (whether or not
exercised) to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract, or
otherwise, and the terms "controlling," "controlled by," and "under direct or
indirect common control with" have meanings correlative thereto.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
Common Stock: The shares of common stock, $.10 par value, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, in each case, as issuable or issued upon
conversion of the Notes.
Damages Accrual Period: See Section 2(d) hereof.
<PAGE>
Damages Payment Date: Each of the semi-annual interest payment dates
provided in the Indenture, whether or not Liquidated Damages are payable on such
date.
Effectiveness Period: The period commencing with the date hereof and
ending on the earlier of the date that is two years after the latest date of
original issuance of the Notes and the date that all Registrable Securities have
ceased to be Registrable Securities.
Effectiveness Target Date: See Section 2(a) hereof.
Event: See Section 2(d) hereof.
Event Date: See Section 2(d) hereof.
Exchange Act: the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indemnified Party: See Section 5(c) hereof.
Indemnifying Party: See Section 5(c) hereof.
Indenture: The Indenture, dated as of October 16, 1997, between the
Company and PNC Bank, Kentucky, Inc., as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: See the first paragraph of this Agreement.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages: See Section 2(d) hereof.
Losses: See Section 5(a) hereof.
Majority of Registrable Securities: A majority of the then
outstanding aggregate principal amount of Registrable Securities. For purposes
of this calculation, Registrable Securities which have been converted into
shares of Common Stock shall be deemed to bear the principal amount at which
such Registrable Securities were converted.
Managing Underwriters: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
Notes: The 5.0% Convertible Subordinated Notes due 2002 of the
Company being issued and sold pursuant to the Purchase Agreement and the
Indenture.
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<PAGE>
Person: Any natural person, corporation, partnership, limited
liability partnership, limited liability company, trust or other legal entity.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the first paragraph of this Agreement.
Record Holder: (i) with respect to any Damages Payment Date relating
to the Notes, each Person who is a registered holder of such Notes on the record
date with respect to the interest payment date under the Indenture on which such
Damages Payment Date shall occur and (ii) with respect to any Damages Payment
Date relating to the Common Stock, each Person who is a registered holder of
such Common Stock 15 days prior to such Damages Payment Date.
Registrable Securities: Each Note and each share of Common Stock into
which the Notes are convertible or converted upon original issuance thereof, and
at all times subsequent thereto, and any Common Stock issued with respect
thereto upon any stock dividend, split or similar event, until, in the case of
any such Note or share of Common Stock, (i) it is effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
covering it, (ii) it is salable by the holder thereof pursuant to Rule 144(k) or
(iii) it is sold to the public pursuant to Rule 144, and, as a result of an
event or circumstance described in any of the foregoing clauses (i) through
(iii), the legends with respect to transfer restrictions required under the
Indenture (other than any such legends required solely as the consequences of
the fact that the Registrable Securities are owned by, or were previously owned
by, the Company or an Affiliate of the Company) are removed or removable in
accordance with the terms of the Indenture.
Registration Expenses: See Section 4 hereof.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
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Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Selling Holder: A Holder offering to sell Registrable Securities.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Alston & Bird LLP, or such other successor counsel as
shall be specified by the Holders of a Majority of Registrable Securities, the
fees and expenses of which will be paid by the Company pursuant to Section 5
hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
Suspension Period: See Section 2(c).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A registration in
which the Registrable Securities are sold by Holders thereof to an underwriter
for reoffering to the public.
2. Shelf Registration.
(a) The Company shall prepare and file with the SEC, as soon as
practicable but in any event on or prior to the date 90 days following the
latest date of original issuance of the Notes (the "Filing Date"), a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration") registering the
resale from time to time by the Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration"). The Initial Shelf Registration
shall be on an appropriate SEC Registration Statement form permitting
registration of such Registrable Securities for resale by such Holders in the
manner or manners designated by them (including, without limitation, one or more
Underwritten Offerings). The Company shall use its best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities Act as
soon as practicable but in any event on or prior to the date 120 days following
the Filing Date (the "Effectiveness Target Date"), and shall use its reasonable
efforts to keep the Initial Shelf Registration continuously effective under the
Securities Act, subject to the provisions of Section 2(c), until the earlier of
the expiration of the Effectiveness Period or the date a Subsequent Shelf
Registration (as defined below) covering all of the Registrable Securities has
been declared effective under the Securities
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<PAGE>
Act. Subject to the right of the Company to have the Initial Shelf Registration
not be effective, or not to be updated, amended or supplemented, for periods of
time set forth in Section 2(c), the Company further agrees to use its best
efforts to prevent the happening of any event that would cause the Initial Shelf
Registration to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities during the
Effectiveness Period.
(b) If the Initial Shelf Registration or any subsequent Shelf
Registration ceases to be effective for any reason as a result of the issuance
of a stop order by the SEC at any time during the Effectiveness Period, the
Company shall use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its best efforts to cause the
subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) In the event (A) of the happening of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof
or (B) that, in the good faith-judgment of the Company, it is advisable to
suspend the use of the Prospectus for a discrete period of time due to pending
material corporate developments or similar material events that have not yet
been publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a certificate in
writing, signed by an authorized executive officer of the Company, to the
Special Counsel, the Initial Purchasers and the Managing Underwriters, if any,
to the effect of the foregoing and thereafter the use of the Prospectus shall be
suspended, and the Company, subject to the terms of this Section 2(c), shall
thereafter not be required to maintain the effectiveness or update the Shelf
Registration. The Company will use its best efforts to ensure that the use of
the Prospectus may be resumed as soon as practicable, in the case of suspension
under Section 2(c)(A), and, in the case of a pending development or event
referred to in Section 2(c)(B) hereof, as soon as, in the good faith-judgment of
the Company, public disclosure of such material corporate development or similar
material event would not have a material adverse effect on the Company.
Notwithstanding the foregoing, the Company shall not under any circumstances be
entitled to exercise its right under this Section 2(c) to suspend the use of the
Prospectus (whether as a result of events referred to in Section 2(c)(A) hereof
or as a result of the pending development or event referred to in Section
2(c)(B) hereof) more than four times in any twelve month period, and the periods
in which the use of the Prospectus is suspended shall not exceed 60 days in any
twelve month period or 30 days in any three-month period (each a "Suspension
Period").
(d) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if (i) the Initial Shelf Registration
has not been filed on or prior to
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<PAGE>
the Filing Date, (ii) the Initial Shelf Registration has not been declared
effective by the Effectiveness Target Date, (iii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act, (iv) the aggregate number of days in any one Suspension Period exceeds the
period permitted pursuant to Section 2(c) hereof or (v) the number of Suspension
Periods exceeds the number permitted pursuant to Section 2(c) hereof (each of
the Events of a type described in any of the foregoing clauses (i) through (v)
are individually referred to herein as an "Event," and the Filing Date in the
case of clause (i), the Effectiveness Target Date in the case of clause (ii),
the date on which the effectiveness of the Shelf Registration has been suspended
or proceedings with respect to the Shelf Registration under Section 8(d) or 8(e)
of the Securities Act have been commenced in the case of clause (iii), the date
on which the duration of a Suspension Period exceeds the period permitted by
Section 2(c) hereof in the case of clause (iv), and the date of the commencement
of a Suspension Period that causes the limit on the number of Suspension Periods
under Section 2(c) hereof to be exceeded in the case of clause (v), being
referred to herein as an "Event Date").
Notwithstanding the foregoing, the parties hereto agree that an Event shall
be deemed not to have occurred to the extent the parties hereto mutually agree
that the direct, proximate cause of said Event was the act or failure to act of
one or more Holders, the Initial Purchasers or the Managing Underwriters. an
Event shall be deemed to continue until the date of the termination of such
Event, which shall be the following dates with respect to the respective types
of Events: the date the Initial Registration Statement is filed in the case of
an Event of the type described in clause (i), the date the initial Shelf
Registration is declared effective in the case of an Event of the described in
clause (ii), the date that all stop orders suspending effectiveness of the Shelf
Registration have been removed and the proceedings initiated with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act have
terminated, as the case may be, in the case of Events of the types described in
clause (iii), termination of the Suspension Period which caused the aggregate
number of days in any one Suspension Period to exceed the number permitted by
Section 2(c) to be exceeded in the case of Events of the types described in
clause (iv), and termination of the Suspension Periods, the commencement of
which caused the number of Suspension Periods permitted by Section 2(d) to be
exceeded in the case of Events of the types described in clause (v).
Accordingly, upon the occurrence of any Event and until such time as there
are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event date on which such damages Accrual Period
began, the company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages"): (i) to each holder of Notes
that are Registrable Securities, accruing at a rate equal to one-half of one
percent per annum (50 basis points) on the aggregate principal amount of Notes
that are Registrable Securities held by such holder and (ii) to each holder of
shares of Common Stock that are Registrable Securities, accruing at a rate equal
to one-half of one percent per annum (50 basis points) calculated on an amount
equal to the product of (x) the then-applicable Conversion Price (as defined
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<PAGE>
in the Indenture), times (y) the number of shares of Common Stock that are
Registrable Securities held by such holder. Notwithstanding the foregoing, no
Liquidated Damages shall accrue as to any Registrable Securities from and after
the earlier of (x) the date such securities are no longer Registrable
Securities, and (y) the expiration of the Effectiveness Period. The rate of
accrual of the Liquidated Damages with respect to any period shall not exceed
the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events.
The Company shall pay the Liquidated Damages due on any Notes or Common
Stock by depositing with the Trustee under the Indenture, in trust, for the
benefit of the holders of Notes or Common Stock, as the case may be, entitled
thereto, at least one Business Day prior to the applicable Damages Payment Date,
sums sufficient to pay the Liquidated Damages accrued or accruing since the last
preceding Damages Payment Date through such Damages Payment Date. The Liquidated
Damages shall be paid by the Company to the Record Holders on each Damages
Payment Date by wire transfer of immediately available funds to the account
specified by them, or if no such accounts have been specified on or before the
Damage Payment Date by mailing checks to their registered addresses as they
appear in the Note register (as defined in the Indenture), in the case of the
Notes, and in the register of the Company for the Common Stock, in the case of
the Common Stock, provided, however, that any Liquidated Damages accrued with
respect to any Note or portion thereof called for redemption on a redemption
date, or repurchased in connection with a Change in Control (as defined in the
Indenture) on a repurchase date, or converted into Common Stock on a conversion
date prior to the Damages Payment Date, shall, in any such event, be paid
instead to the holder who submitted such Note or portion thereof for redemption,
repurchase or conversion on the applicable redemption date, repurchase date or
conversion date, as the case may be, on such date (or promptly following the
conversion date, in the case of conversion of a Note). If a holder of a Note
submits a Note for conversion during the period between a record date for the
payment of Liquidated Damages and the related Damages Payment Date, Liquidated
Damages for the period from the conversion date through the next succeeding
Damages Payment Date shall accrue and be payable to the holder of Common Stock
received on conversion on the next succeeding Damages Payment Date,
notwithstanding that such holder was not a Record Holder with respect to such
Damages Payment Date. The Trustee shall be entitled, on behalf of the Holders of
Notes and Common Stock to seek any available remedy for the enforcement of this
Agreement, including for the payment of such Liquidated Damages. Nothing shall
preclude a Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(d) which are
outstanding with respect to any Registrable Securities at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 7(o)).
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<PAGE>
The parties hereto agree that the Liquidated Damages provided for in this
Section 2(d) constitute a reasonable estimate of the damages that may be
incurred by holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or available (absolutely or as a practical matter) for
effecting resales of Registrable Securities, as the case may be, in accordance
with the provisions hereof.
3. Registration Procedures. In connection with the Company's registration
obligations under Section 2 hereof, the Company shall effect such registrations
to permit the sale of the Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof and shall
include all required financial statements, and use its best efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein; provided, that before filing, any such Registration Statement
or Prospectus or any amendments or supplements thereto the Company shall furnish
within a reasonable time period to each Selling Holder (if requested by such
Selling Holder), the Initial Purchasers, the Special Counsel and the Managing
Underwriters of such offering, if any, copies of all such documents proposed to
be filed, which documents will be subject to the review of each Selling Holder
(if requested by such Selling Holder), the Initial Purchasers, the Special
Counsel and such Managing Underwriters, and the Company shall not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto to which the Holders of a Majority of Registrable Securities covered by
such Registration Statement, the Initial Purchasers or the Special Counsel shall
reasonably object in writing within five Business Days after the receipt
thereof. In addition, the Company shall use its best efforts to reflect in each
such document referenced in this paragraph so filed with the SEC such comments
as the Initial Purchasers, Special Counsel and the Managing Underwriters, if
any, may propose.
(b) Subject to Section 2(c), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement as
so amended or such Prospectus as so supplemented. The Company shall ensure that
(i) any Shelf Registration and any amendment thereto and any Prospectus forming
a part thereof and any amendment or supplement thereto complies in all material
respects with the Act
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<PAGE>
and the rules and regulations thereunder, (ii) any Shelf Registration and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration, and any amendment
or supplement to such Prospectus, does not include an untrue statement or a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) Notify the Holders, the Initial Purchasers, the Special Counsel
and the Managing Underwriters, if any, promptly, and (if requested by any such
Person) confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceedings for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that the Registration Statement
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of the
Company's determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest possible
moment.
(e) If requested by the Initial Purchasers, the Special Counsel or the
Managing Underwriters, if any, or the Holders of a Majority of the Registrable
Securities being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information as the
Initial Purchasers, the Special Counsel, the Managing Underwriters, if any, or
such Holders and the Company mutually agree should be included therein, and (ii)
make all required filings of such
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Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters proposed to be
incorporated in such Prospectus supplement or post-effective amendment.
(g) Furnish to each Selling Holder (if requested by such Selling
Holder), the Special Counsel, the Initial Purchasers, and each Managing
Underwriter, if any, without charge, at least one conformed copy of the
Registration Statement or Statements and any amendment thereto, including
financial statements but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each Selling Holder, the Special Counsel, the Initial
Purchasers and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the Selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the Selling Holders, the Managing
Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Selling Holder or Managing Underwriter reasonably requests in writing, keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement, provided, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it is
not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies in addition to the SEC or authorities within the United
States as may be necessary to enable the Selling Holder or Holders thereof or
the Managing Underwriters, if any, to consummate the disposition of such
Registrable Securities.
(j) During the Effectiveness Period (subject to the provisions of
Section 2(c)), immediately upon the existence of any fact or the occurrence of
any event as a result of which (i) a Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (ii) a Prospectus shall contain any untrue
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statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, promptly prepare and
file a post-effective amendment to each Registration Statement or a supplement
to the related Prospectus or any document incorporated therein by reference or
file any other required document (such as a Current Report on Form 8-K) that
would be incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and so that the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder; and in the case of a post-effective amendment to a Registration
Statement, use its best efforts to cause it to become effective as soon as
practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including, in the event of an the Underwritten Offering,
those reasonably requested by the Managing Underwriters, if any, or the Holders
of a Majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an Underwritten Registration, (i) make such representations and
warranties to the Holders of such Registrable Securities and the underwriters
with respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by reference or
deemed incorporated by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) use its reasonable
efforts to obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any, Special Counsel and the
Holders of a Majority of Registrable Securities being sold) addressed to each of
the underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably requested
by such Special Counsel and Managing Underwriters; (iii) use its reasonable
efforts to obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other certified public accountants of any subsidiary of the Company or any
business acquired or to be acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each of the Managing Underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with Underwritten
Offerings, and (iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being sold,
the Special Counsel and the Managing Underwriters,
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if any, to evidence the continued validity of the representations and warranties
of the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company. The above shall be
done at each closing under such underwriting or similar agreement as and to the
extent required thereunder.
(1) Make available for inspection by a representative of the Holders
of Registrable Securities being sold, any Managing Underwriter participating in
any disposition of Registrable Securities, if any, and any attorney or
accountant retained by such Selling Holders or underwriter, financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the executive officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such representative, Managing Underwriter, attorney or accountant in
connection with such disposition; provided, however, that any information that
is reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of such information is
required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Registration Statement or
the use of any prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of disclosure
or failure to safeguard by any such person or (iv) such information becomes
available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement.
(m) Comply with all applicable rules and regulations of the SEC in all
material respects and make generally available to its securityholders earnings
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(n) Cooperate with the Selling Holders of Registrable Securities, the
Initial Purchasers, the Special Counsel and the Managing Underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends, and
enable such Registrable Securities to be in such denominations and registered in
such names as the Holders may request.
(o) Not later than the effectiveness date of any Registration
Statement hereunder, provide a CUSIP number for the Registrable Securities
registered under such
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Registration Statement, and provide the Trustee under the Indenture and the
transfer agent for the Common Stock with printed certificates for the
Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company.
(p) Cause all shares of Common Stock covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Company's Common Stock is then listed or quoted no later than the date the
Registration Statement is declared effective, and, in connection therewith, to
the extent applicable, to make such filings as are required under the Exchange
Act (e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
(q) Cooperate and assist in any filing required to be made with the
National Association of Securities Dealers, Inc.
(r) Cause the Indenture to be qualified under the TIA no later than
the date the Registration Statement is declared effective, and, in connection
therewith, cooperate with the Trustee and the Holders, the Initial Purchasers,
the Special Counsel and the Managing Underwriters, if any, to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the SEC to enable such Indenture to be so qualified in a timely manner.
The Company may require each Holder of securities to be sold pursuant to
any Registration Statement to furnish to the Company such information regarding
the Holder and the distribution of such securities as the Company may from time
to time reasonably require for inclusion in such Registration Statement. Any
Holder who fails to provide such information shall not be entitled to use the
Prospectus.
4. Registration Expenses. All fees and expenses incident to the Company's
obligations under this Agreement shall be borne by the Company whether or not
any of the Registration Statements become effective. Such fees and expenses
shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses with respect to filings
required to be made with the National Association of Securities Dealers, Inc.),
(ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is requested by the Special Counsel, the Initial Purchasers, the
Managing Underwriters or the holders of a Majority of Registrable Securities
included in any Registration Statement), (iii) reasonable fees and disbursements
of counsel for the Company and the Special Counsel in connection with the Shelf
Registration (provided that the Company shall not be liable for the fees and
expenses of more than one separate firm for all parties (other than the Company)
participating in any transaction hereunder), and (iv) fees and disbursements of
all independent certified public accountants referred to in Section 3(k)(iii)
hereof (including the expenses of any special audits and "cold comfort" letters
required by or incident to such performance). In addition, the Company shall
pay the fees and expenses
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incurred in connection with the listing or quotation of the securities to be
registered on any securities exchange or quotations system on which similar
securities issued by the Company are then listed and the fees and expenses of
any Person, including special experts, retained by the Company.
5. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless each Holder, the directors, officers, employees and agents of each
such Holder and each Person, if any, who controls any such Holder (within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act) from and against all losses, liabilities, damages and expenses (including
without limitation, any reasonable legal or other expenses incurred in
connection with defending or investigating any such action or claim)
(collectively, "Losses"), arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or in any amendment or supplement thereto, or arising
out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances under which they were
made, except insofar as such losses arise out of or are based upon information
relating to any Holder furnished to the Company in writing by such holder
expressly for use therein. The Company shall also indemnify each underwriter,
their officers and directors, and each Person who controls such Person (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent and with the same limitations as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. Each Holder,
agrees severally and not jointly to indemnify and hold harmless the Company, its
directors, its officers who sign a Registration Statement and each Person, if
any, who controls the Company (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and against all Losses
arising out of or based upon any untrue statement of a material fact contained
in any Registration Statement or Prospectus or arising out of or based upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, in light of the circumstances under which
they were made, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information relating to such Holder
furnished in writing by such Holder to the Company expressly for use in such
Registration Statement or Prospectus. In no event shall the liability of any
Selling Holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Party") shall promptly
notify the Person against
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whom such indemnity may be sought (the "Indemnifying Party") in writing, but
failure so to notify an Indemnifying Party shall not relieve such Indemnifying
Party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof. The Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel satisfactory to the Indemnified Party to represent
the Indemnified Party and any others the Indemnifying Party may designate in
such proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any Indemnified Party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention to such
counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, or (iii) the Indemnifying
Party shall not have employed counsel satisfactory to the Indemnified Party to
represent the Indemnified Party within a reasonable time after notice of
commencement of the action. It is understood that the Indemnifying Party shall
not, in respect of the legal expenses of any Indemnified Party in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties under Section 5(a) or 5(b) hereof who
are parties to such proceeding or proceedings, and that all such fees and
expenses shall be reimbursed as they are incurred. The Indemnifying Party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party
shall have requested an Indemnifying Party to reimburse the Indemnified Party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, such Indemnifying Party agrees that it shall be
liable for any settlements of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such Indemnifying Party of the aforesaid request and (ii) such Indemnifying
Party shall not have reimbursed the Indemnified Party in accordance with such
request prior to the date of such settlement. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this Section
5 is unavailable to an Indemnified Party under Section 5(a) or 5(b) hereof in
respect of any Losses or is insufficient to hold such Indemnified Party
harmless, then each applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying
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Party or Indemnifying Parties on the one hand and the Indemnified Party or
Indemnified Parties an the other hand or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Indemnifying Party or Indemnified
Parties on the one hand and of the Indemnified Party or Indemnifying Parties on
the other hand in connection with the statements or omissions that resulted in
such Losses, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the initial placement of the Notes pursuant to the Purchase Agreement.
Benefits received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions received by them pursuant to the
Purchase Agreement and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Notes registered under the Securities Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. The relative fault of the Holders on the one hand and the Company on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Holders
or by the Company and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute pursuant to this paragraph are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 5(d), an
Indemnifying Party that is a Selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Indemnifying Party and
distributed to the public were offered to the public exceeds the amount of any
damages which such Indemnifying Party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The
indemnity, contribution and expense reimbursement obligations of the Company
hereunder shall be in addition to any liability the Company may otherwise have
hereunder, under the Purchase Agreement or otherwise.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement,
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<PAGE>
(ii) any investigation made by or on behalf of any Holder or any Person
controlling any Holder, or the Company, its officers or directors or any Person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
6. Information Requirements.
(a) The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act, and if at any time the Company is
not required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act.
The Company further covenants that it will cooperate with any Holder
of Registrable Securities and take such further reasonable action as any Holder
of Registrable Securities may reasonably request (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act. Notwithstanding the foregoing, nothing in this Section 6 shall
be deemed to require the Company to register any of its securities under any
section of the Exchange Act.
(b) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other requirements set forth in
the instructions to the appropriate SEC Registration Statement form permitting
registration of the Registrable Securities for resale by the Holders thereof in
the manner or manners designated by them.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not entered into as of
the date hereof, and shall not enter into on or after the date hereof, any
agreement with respect to its securities which conflicts with the rights granted
to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
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<PAGE>
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a Majority of Registrable Securities. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the Registrable
Securities being so sold; provided, that the provisions of this sentence may not
be amended, modified, or supplemented except in accordance with the provisions
of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier or
(iii) one business day after being deposited with a reputable next day courier,
postage prepaid, to the parties as follows:
(x) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of Section 7(e):
(y) if to the Company, to:
Atria Communities, Inc.
515 West Market Street
Louisville, Kentucky 40202
Attention: General Counsel
Telecopy No.: (502) 596-4160
with a copy to:
Greenebaum Doll & McDonald, PLLC
3300 National City Tower
101 South Fifth Street, 34th Floor
Louisville, Kentucky 40202
Attention: Ivan M. Diamond
Telecopy No.: (502) 540-2134
and
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(z) if to the Special Counsel to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Attention: J. Vaughan Curtis, Esq.
telecopy no.: (404) 881-4777
or to such other address as such Person may have furnished to the other Persons
identified in this Section 7(d) in writing in accordance herewith.
Copies of all notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) Owner of Registrable Securities. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a register with respect
to the Registrable Securities in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the Person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(f) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent holders of Registrable Securities if such subsequent holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(g) Successors and Assigns. Any Person who purchases any Registrable
Securities from an Initial Purchaser shall be deemed, for purposes of this
Agreement to be an assignee of such Initial Purchaser. The Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon each holder of any
Registrable Securities.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF KENTUCKY AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF KENTUCKY WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect, and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. Except as provided in the
Purchase Agreement and the Indenture, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the securities sold pursuant to the Purchase Agreement and the Indenture. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such subject matter.
(m) Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 2(d), 4 or 5 hereof, each of which
shall remain in effect in accordance with their terms.
(p) Third Party Beneficiaries. The Company and the Initial Purchasers
agree that each Holder shall be a third party beneficiary of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ATRIA COMMUNITIES, INC.
By: /s/ J. Timothy Wesley
---------------------------------
Name: J. Timothy Wesley
Title: Chief Financial Officer
Accepted as of the date first above written:
BT ALEX. BROWN INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SMITH BARNEY INC.
J.C. BRADFORD & CO.
By: BT Alex. Brown Incorporated
By: /s/ Pat O'Shea
---------------------------------------------
Name: Pat O'Shea
Title: Vice President and Syndicate Manager
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