Exhibit 4.1
SILGAN HOLDINGS INC.,
as Issuer
and
U.S.
BANK NATIONAL ASSOCIATION,
as Trustee
--------------
INDENTURE
Dated as of May 12, 2009
--------------
7 1/4% Senior Notes due 2016
<PAGE>
CROSS-REFERENCE TABLE
---------------------
TIA
Sections
Indenture Sections
------------
------------------
ss. 310
(a)(1)
7.10
(a)(2)
7.10
(b)
7.08
ss. 313
(c)
7.06; 11.02
ss. 314
(a)
4.18; 11.02
(a)(4)
4.17;
11.02
(c)(1)
11.03
(c)(2)
11.03
(e)
11.04
ss. 315
(b)
7.05; 11.02
ss. 316
(a)(1)(A)
6.05
(a)(1)(B)
6.04
(b)
6.07
ss. 317
(a)(1)
6.08
(a)(2)
6.09
ss. 318
(a)
11.01
(c)
11.01
Note: The Cross-Reference Table shall not for any purpose be deemed
to be a part
of the Indenture.
<PAGE>
TABLE OF CONTENTS(1)
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Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.
Definitions......................................................1
-----------
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act...............21
-------------------------------------------------
SECTION 1.03. Rules of
Construction...........................................21
---------------------
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and
Dating.................................................22
---------------
SECTION 2.02. Restrictive
Legends.............................................23
-------------------
SECTION 2.03. Execution, Authentication and
Denominations.....................25
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SECTION 2.04. Registrar and Paying
Agent......................................26
---------------------------
SECTION 2.05. Paying Agent to Hold Money in
Trust.............................26
-----------------------------------
SECTION 2.06. Transfer and
Exchange...........................................27
---------------------
SECTION 2.07. Book-Entry Provisions for Global
Notes..........................27
--------------------------------------
SECTION 2.08. Special Transfer
Provisions.....................................29
---------------------------
SECTION 2.09. Replacement
Notes...............................................32
-----------------
SECTION 2.10. Outstanding
Notes...............................................32
-----------------
SECTION 2.11. Temporary
Notes.................................................32
---------------
SECTION 2.12.
Cancellation....................................................33
------------
SECTION 2.13. CUSIP
Numbers...................................................33
-------------
SECTION 2.14. Defaulted
Interest..............................................33
------------------
SECTION 2.15. Issuance of Additional
Notes....................................33
----------------------------
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of
Redemption.............................................34
-------------------
SECTION 3.02. Notices to
Trustee..............................................34
------------------
SECTION 3.03. Selection of Notes to Be
Redeemed...............................34
---------------------------------
SECTION 3.04. Notice of
Redemption............................................35
--------------------
SECTION 3.05. Effect of Notice of
Redemption..................................36
------------------------------
SECTION 3.06. Deposit of Redemption
Price.....................................36
---------------------------
SECTION 3.07. Payment of Notes Called for
Redemption..........................36
--------------------------------------
SECTION 3.08. Notes Redeemed in
Part..........................................36
----------------------
ARTICLE FOUR
COVENANTS
___________________________
Note: The Table of Contents shall not for any purposes be
deemed to be a part
of the Indenture.
i
<PAGE>
SECTION 4.01. Payment of
Notes................................................37
----------------
SECTION 4.02. Maintenance of Office or
Agency.................................37
-------------------------------
SECTION 4.03. Limitation on
Indebtedness......................................38
--------------------------
SECTION 4.04. Limitation on Restricted
Payments...............................40
---------------------------------
SECTION 4.05. Limitation on Dividends and Other Payment
Restrictions Affecting
----------------------------------------------------------------
Restricted Subsidiaries....................................
..42
-----------------------
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock
of
-------------------------------------------------------
Restricted
Subsidiaries.......................................43
-----------------------
SECTION 4.07. Limitation on Issuances of Guarantees by
Restricted
---------------------------------------------------
Subsidiaries..................................................44
------------
SECTION 4.08. Limitation on Transactions with Stockholders and
Affiliates.....44
------------------------------------------------------------
SECTION 4.09. Limitation on
Liens.............................................45
-------------------
SECTION 4.10. Limitation on Sale and Leaseback
Transactions...................46
---------------------------------------------
SECTION 4.11. Limitation on Asset
Sales.......................................46
-------------------------
SECTION 4.12. Repurchase of Notes upon a Change of
Control....................47
--------------------------------------------
SECTION 4.13.
Existence.......................................................47
---------
SECTION 4.14. Payment of Taxes and Other
Claims...............................47
---------------------------------
SECTION 4.15. Maintenance of Properties and
Insurance.........................48
---------------------------------------
SECTION 4.16. Notice of
Defaults..............................................48
------------------
SECTION 4.17. Compliance
Certificate..........................................48
----------------------
SECTION 4.18. Commission Reports and Reports to
Holders.......................48
-----------------------------------------
SECTION 4.19. Waiver of Stay, Extension or Usury
Laws.........................49
---------------------------------------
ARTICLE FIVE
SUCCESSOR
CORPORATION
SECTION 5.01. When Company May Merge,
Etc.....................................49
---------------------------
SECTION 5.02. Successor
Substituted...........................................50
---------------------
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of
Default...............................................50
-----------------
SECTION 6.02.
Acceleration....................................................52
------------
SECTION 6.03. Other
Remedies..................................................52
--------------
SECTION 6.04. Waiver of Past
Defaults.........................................52
-----------------------
SECTION 6.05. Control by
Majority.............................................53
-------------------
SECTION 6.06. Limitation on
Suits.............................................53
-------------------
SECTION 6.07. Rights of Holders to Receive
Payment............................54
------------------------------------
SECTION 6.08. Collection Suit by
Trustee......................................54
--------------------------
SECTION 6.09. Trustee May File Proofs of
Claim................................54
--------------------------------
SECTION 6.10.
Priorities......................................................54
----------
SECTION 6.11. Undertaking for
Costs...........................................55
---------------------
SECTION 6.12. Restoration of Rights and
Remedies..............................55
----------------------------------
SECTION 6.13. Rights and Remedies
Cumulative..................................55
------------------------------
SECTION 6.14. Delay or Omission Not
Waiver....................................55
----------------------------
ii
<PAGE>
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Certain Duties and
Responsibilities.............................55
-----------------------------------
SECTION 7.02. Certain Rights of
Trustee.......................................56
-------------------------
SECTION 7.03. Individual Rights of
Trustee....................................58
----------------------------
SECTION 7.04. Trustee's
Disclaimer............................................58
--------------------
SECTION 7.05. Notice of
Default...............................................58
-----------------
SECTION 7.06. Reports by Trustee to
Holders...................................58
-----------------------------
SECTION 7.07. Compensation and
Indemnity......................................58
--------------------------
SECTION 7.08. Replacement of
Trustee..........................................59
----------------------
SECTION 7.09. Successor Trustee by Merger,
Etc................................60
--------------------------------
SECTION 7.10.
Eligibility.....................................................60
-----------
SECTION 7.11. Money Held in
Trust.............................................60
-------------------
SECTION 7.12. Withholding
Taxes...............................................60
-----------------
ARTICLE EIGHT
DEFEASANCE AND DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance of
Indenture.........................................60
-----------------------
SECTION 8.02. Defeasance of Certain
Obligations...............................62
---------------------------------
SECTION 8.03. Satisfaction and
Discharge......................................63
--------------------------
SECTION 8.04. Application of Trust
Money......................................64
--------------------------
SECTION 8.05. Repayment to
Company............................................64
--------------------
SECTION 8.06.
Reinstatement...................................................65
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of
Holders......................................65
--------------------------
SECTION 9.02. With Consent of
Holders.........................................65
-----------------------
SECTION 9.03. Revocation and Effect of
Consent................................67
--------------------------------
SECTION 9.04. Notation on or Exchange of
Notes................................67
--------------------------------
SECTION 9.05. Trustee to Sign Amendments,
Etc.................................67
-------------------------------
SECTION 9.06. Conformity with Trust Indenture
Act.............................67
-----------------------------------
SECTION 9.07. Effect of Supplemental
Indentures...............................68
---------------------------------
ARTICLE TEN
[INTENTIONALLY OMITTED]
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of
1939....................................68
---------------------------
SECTION 11.02.
Notices........................................................68
-------
SECTION 11.03. Certificate and Opinion as to Conditions
Precedent.............69
--------------------------------------------------
SECTION 11.04. Statements Required in Certificate or
Opinion..................69
---------------------------------------------
SECTION 11.05. Rules by Trustee, Paying Agent or
Registrar....................70
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iii
<PAGE>
SECTION 11.06. Payment Date Other Than a Business
Day.........................70
--------------------------------------
SECTION 11.07. Governing
Law..................................................70
-------------
SECTION 11.08. No Adverse Interpretation of Other
Agreements..................70
---------------------------------------------
SECTION 11.09. Indenture and Notes Solely Corporate
Obligations...............70
------------------------------------------------
SECTION 11.10.
Successors.....................................................71
----------
SECTION 11.11. Duplicate
Originals............................................71
-------------------
SECTION 11.12.
Separability...................................................71
------------
SECTION 11.13. Table of Contents, Headings,
Etc...............................71
--------------------------------
SECTION 11.14. Indenture for Sole Benefit of Parties and
Holders..............71
------------------------------------------------
iv
<PAGE>
EXHIBIT A Form of
Note......................................................A-1
EXHIBIT B Form of
Certificate...............................................B-1
EXHIBIT C Form of Certificate to Be Delivered in Connection
with
Transfers Pursuant to Non-QIB Accredited
Investors................C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection
with
Transfers
Pursuant to Regulation S................................D-1
v
<PAGE>
INDENTURE, dated as of May 12,
2009, between SILGAN HOLDINGS INC.,
a
Delaware corporation (the "Company"), and U.S.
Bank National Association, a
-------
national banking association, as Trustee (the "Trustee").
-------
RECITALS
The Company has
duly authorized the execution and
delivery of this
Indenture to provide for the issuance of an unlimited aggregate
principal amount
of the Company's 7 1/4% Senior Notes due 2016 (the "Notes")
issuable as provided
-----
in this Indenture. Initially, the
Notes will be limited to
$250,000,000
aggregate principal amount. All things necessary to make this
Indenture a valid
agreement of the Company, in accordance with its terms, have
been done, and the
Company has done all things necessary to make the
Notes, when executed by the
Company and authenticated and delivered by the Trustee hereunder
and duly issued
by the Company, the valid obligations of the Company as hereinafter
provided.
This Indenture is subject to, and
shall be governed by, the provisions of
the Trust Indenture Act of 1939 that are required to be a
part of and to govern
indentures qualified under the Trust Indenture Act of 1939.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of
the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted
and agreed, for the equal and
proportionate benefit of all Holders, the Company and the Trustee,
as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
-----------
"Acquired Indebtedness" means Indebtedness
of a Person existing at the time
such Person becomes a Restricted Subsidiary or assumed
in connection with an
Asset Acquisition by a Restricted
Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming
a Restricted Subsidiary or
such Asset Acquisition; provided that
Indebtedness of such Person which is
redeemed, defeased, retired or otherwise repaid
at the time of or immediately
upon consummation of the transactions by which such Person
becomes a Restricted
Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"Adjusted Consolidated Net Income" means,
for any period, the aggregate net
income (or loss) of the Company and its Restricted
Subsidiaries for such period
determined in conformity with GAAP; provided that the
following items shall be
excluded in computing Adjusted Consolidated Net Income
(without duplication):
(i) the net income (or loss) of any Person
(other than net income (or loss)
attributable to a Restricted Subsidiary) in which
any Person (other than the
Company or any of its Restricted Subsidiaries) has a joint
interest and the net
income (or loss) of any Unrestricted
Subsidiary, except to the extent of the
amount of dividends or other distributions actually
paid to the Company or any
of its Restricted Subsidiaries by such
other Person or such Unrestricted
Subsidiary during such period; (ii) solely for the
purposes of calculating the
amount of Restricted Payments that may be
made pursuant to
1
<PAGE>
clause (C) of the first paragraph of Section 4.04 (and in
such case, except to
the extent includable pursuant to clause (i) above), the net income
(or loss) of
any Person accrued prior to the date it becomes a
Restricted Subsidiary or is
merged into or consolidated with
the Company or any of its
Restricted
Subsidiaries or all or substantially all of
the property and assets of such
Person are acquired by the Company or any of its Restricted
Subsidiaries; (iii)
the net income (or loss) of any Restricted
Subsidiary to the extent that the
declaration or payment of dividends or similar distributions
by such Restricted
Subsidiary of such net income is not at the time
permitted by the operation of
the terms of its charter or any agreement, instrument,
judgment, decree, order,
statute, rule or governmental
regulation applicable to such
Restricted
Subsidiary; (iv) any gains or losses (on an after-tax
basis) attributable to
Asset Sales; (v) except for purposes of
calculating the amount of Restricted
Payments that may be made pursuant to
clause (C) of the first paragraph of
Section 4.04, any amount paid or accrued as dividends on
Preferred Stock of the
Company or any Restricted Subsidiary owned by Persons other than
the Company and
any of its Restricted
Subsidiaries; (vi) all
extraordinary gains and
extraordinary losses; (vii) any net
gain or loss arising from the
early
extinguishment of any Indebtedness of any Person, including
the amortization or
write-off of debt
issuance costs or debt
discount; and (viii) any
post-retirement healthcare benefits
required to be accrued by Statement of
Financial Accounting Standards ("FAS") No.
106; provided further that for
purposes of clause (iv) of the first paragraph of
Section 4.04, in connection
with any Investment in a business, "Adjusted Consolidated Net
Income" during the
period commencing on April 1, 1997 and ending on the last day of
the last fiscal
quarter preceding the Transaction Date
shall not be less than $100 million,
unless actual Adjusted Consolidated Net
Income for such period is a loss, in
which case Adjusted Consolidated Net
Income for such period shall be $100
million minus the amount of such loss.
"Adjusted Consolidated
Net Tangible Assets" means the total amount
of
assets of the Company and its
Restricted Subsidiaries (less
applicable
depreciation, amortization and other valuation
reserves), except to the extent
resulting from write-ups of capital assets after
the Closing Date (excluding
write-ups in connection with accounting for
acquisitions in conformity with
GAAP), after deducting therefrom (i) all current liabilities
of the Company and
its Restricted Subsidiaries
(excluding intercompany items) and
(ii) all
goodwill, trade names, trademarks,
patents, unamortized debt discount and
expense and other like intangibles,
all as set forth on the most recent
quarterly or annual consolidated balance sheet of the Company and
its Restricted
Subsidiaries (after giving effect to any
acquisition or disposition of assets
made after such balance sheet
date and on or prior to
such date of
determination), prepared in conformity with GAAP and
filed with the Commission
or provided to the Trustee pursuant to Section 4.18.
"Affiliate" means, as applied to any
Person, any other Person directly or
indirectly controlling, controlled by, or
under direct or indirect common
control with, such Person. For
purposes of this definition,
"control"
(including, with correlative meanings, the terms
"controlling," "controlled by"
and "under common control with"),
as applied to any Person, means
the
possession, directly or indirectly, of
the power 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.
"Agent Members" has the meaning provided
in Section 2.07(a).
2
<PAGE>
"Applicable Premium"
means, with respect to a Note
at any date of
redemption, the greater of (i) 1.0% of the then outstanding
principal amount of
such Note and (ii) any excess
of (A) the present
value (discounted
semi-annually) at such date of redemption of (1) the
redemption price of such
Note at August 15, 2013 (such redemption price being set
forth in Section 3.01)
plus (2) all remaining required interest
payments due on such Note through
August 15, 2013 (excluding accrued
but unpaid interest to the date
of
redemption), computed using a discount rate equal to
the Treasury Rate plus 50
basis points, over (B) the principal amount of such Note.
"Asset Acquisition" means (i)
an investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which
such Person shall
become a Restricted Subsidiary or shall be merged into or
consolidated with the
Company or any of its Restricted
Subsidiaries; provided that such Person's
primary business is related, ancillary or complementary to the
businesses of the
Company and its Restricted Subsidiaries on the date of
such investment or (ii)
an acquisition by the Company or any of its
Restricted Subsidiaries of the
property and assets of any
Person other than the Company or any
of its
Restricted Subsidiaries that constitute
substantially all of a division,
operating unit or line of business of such Person;
provided that the property
and assets acquired are related, ancillary or complementary to the
businesses of
the Company and its Restricted Subsidiaries on the date of such
acquisition.
"Asset Disposition" means the
sale or other disposition by the Company or
any of its Restricted Subsidiaries (other
than to the Company or another
Restricted Subsidiary) of (i) all or substantially all
of the Capital Stock of
any Restricted Subsidiary of the Company or (ii) all or
substantially all of the
assets that constitute a division,
operating unit or line of business of the
Company or any of its Restricted Subsidiaries.
"Asset Sale" means any sale,
transfer or other disposition (including by
way of merger, consolidation or
Sale and Leaseback Transaction) in
one
transaction or a series of related transactions
by the Company or any of its
Restricted Subsidiaries to any Person
other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of
any Restricted
Subsidiary, (ii) all or substantially all of
the property and assets of an
operating unit or business of the Company or any of its
Restricted Subsidiaries
or (iii) any other property and assets of the Company or any
of its Restricted
Subsidiaries outside the ordinary course
of business of the Company or such
Restricted Subsidiary and, in each case, that is not
governed by Article Five;
provided that "Asset Sale" shall not include (a) sales or
other dispositions of
inventory, receivables and other current assets, (b) sales or other
dispositions
of assets for consideration at least equal
to the fair market value of the
assets sold or disposed of, to the extent that the
consideration received would
satisfy clause (B) of Section 4.11, (c) any
Restricted Payments permitted by
Section 4.04, (d) sales, transfers or other dispositions of
obsolete or worn out
equipment or spare parts, (e) any Sale and Leaseback
Transaction in which the
proceeds of such transaction are used to finance or refinance the
acquisition of
such assets or (f) during each
fiscal year of the Company, other
sales,
transfers or dispositions of assets having a fair market
value not in excess of
$1,000,000.
"Attributable Debt" in respect of a
Sale and Leaseback Transaction means,
at the time of determination, the present value of the
obligation of the lessee
for net rental payments during the remaining term of the
lease included in such
Sale and Leaseback Transaction,
3
<PAGE>
including any period for which such lease has
been extended or may, at the
option of the lessor, be extended. Such present value shall
be calculated using
a discount rate equal to the rate of interest
implicit in such transaction,
determined in accordance with GAAP.
"Average Life" means, at any date of
determination with respect to any debt
security, the quotient obtained by dividing (i) the sum
of the products of (a)
the number of years from such date
of determination to the dates of each
successive scheduled principal payment of such debt security
and (b) the amount
of such principal payment by (ii) the sum of all such principal
payments.
"Board of Directors" means the
Board of Directors of the Company or any
duly authorized committee of such Board of Directors.
"Board Resolution" means a copy of a
resolution, certified by the Secretary
of the Company to have been duly adopted by the Board of
Directors and to be in
full force and effect on the date of such
certification, and delivered to the
Trustee.
"Business Day" means any
day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the
city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means,
with respect to any Person, any and all shares,
interests, participations or other equivalents
(however designated, whether
voting or non-voting) in equity of such
Person, whether outstanding on the
Closing Date or issued thereafter, including,
without limitation, all Common
Stock and Preferred Stock.
"Capitalized Lease"
means, as applied to any Person, any lease
of any
property (whether real, personal or mixed) of which the discounted
present value
of the rental obligations of the lessee, in conformity with GAAP,
is required to
be capitalized on the balance sheet of such Person.
"Capitalized Lease
Obligations" means the discounted present value of the
rental obligations under a Capitalized Lease.
"Change of Control"
means such time as (i) (a) a "person" or
"group"
(within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act), other
than Permitted Holders, becomes the ultimate
"beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), of more than 50% of
the total voting power
of the Voting Stock of the Company and (b) Permitted
Holders beneficially own,
directly or indirectly, less than 18% of the
total voting power of the Voting
Stock of the Company; or (ii) individuals who on the Closing Date
constitute the
Board of Directors (together with any new
directors nominated by Mr. D. Greg
Horrigan and/or Mr. R. Philip Silver and any new directors whose
election by the
Board of Directors or whose nomination by the Board of Directors
for election by
the Company's stockholders was approved by a vote of at least
a majority of the
members of the Board of Directors then in office who either
were members of the
Board of Directors on the Closing Date or
whose election or nomination for
election was previously so approved)
cease for any reason to constitute a
majority of the members of the Board of Directors then in
office.
4
<PAGE>
"Closing Date" means May 12, 2009.
"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 TIA, then the body performing
such duties at
such time.
"Common Stock" means,
with respect to any Person, any and all
shares,
interests, participations or other equivalents
(however designated, whether
voting or non-voting) of such Person's common stock, whether
now outstanding or
issued after the date of this Indenture,
including, without limitation, all
series and classes of such common stock.
"Company" means the party
named as such in the first paragraph of this
Indenture until a successor replaces
it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written
request or order signed in the name of the
Company (i) by its Chief Executive Officer, a
President or any Vice President
(including any Executive Vice President or Senior
Vice President) and (ii) by
its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary
and delivered to the Trustee; provided, however,
that such written request or
order may be signed by any two of the officers or directors listed
in clause (i)
above in lieu of being signed by one of such officers
or directors listed in
such clause (i) and one of the officers listed in clause (ii)
above.
"Consolidated EBITDA" means,
for any period, Adjusted Consolidated Net
Income for such period plus, to the
extent such amount was deducted
in
calculating such Adjusted Consolidated Net
Income, (i) Consolidated Interest
Expense, (ii) income taxes (other
than income taxes (either positive or
negative) attributable to extraordinary and
non-recurring gains or losses or
sales of assets), (iii) depreciation expense, (iv)
amortization expense and all
other amortization of intangibles and (v)
all other non-cash items reducing
Adjusted Consolidated Net Income, less all non-cash
items increasing Adjusted
Consolidated Net Income, all as determined
on a consolidated basis for the
Company and its Restricted Subsidiaries in conformity with
GAAP; provided that,
if any Restricted Subsidiary is not a
Wholly Owned Restricted Subsidiary,
Consolidated EBITDA shall be reduced (to the extent
not otherwise reduced in
accordance with GAAP) by an amount
equal to the amount of the
Adjusted
Consolidated Net Income attributable to such Restricted Subsidiary
multiplied by
the quotient of (1) the number of shares of
outstanding Common Stock of such
Restricted Subsidiary not owned on the last day of such period by
the Company or
any of its Restricted Subsidiaries divided by (2) the total
number of shares of
outstanding Common Stock of such Restricted Subsidiary
on the last day of such
period.
"Consolidated Interest Expense" means, for
any period, the aggregate amount
of interest in respect of Indebtedness
including, without limitation, (i)
amortization of original issue discount on any
Indebtedness and the interest
portion of any deferred payment obligation,
calculated in accordance with the
effective interest method of accounting; (ii) all
commissions, discounts and
other fees and charges owed with respect
to letters of credit and bankers'
acceptance financing; (iii) the net
costs associated with Interest Rate
Agreements and
5
<PAGE>
Indebtedness that is Guaranteed or
secured by the Company or any of its
Restricted Subsidiaries; (iv) imputed
interest with respect to Attributable
Debt; and (v) all but the principal
component of rentals in respect
of
Capitalized Lease Obligations paid, accrued
or scheduled to be paid or to be
accrued by the Company and its Restricted
Subsidiaries during such period;
excluding, however, any amount of such interest of any
Restricted Subsidiary if
the net income of such Restricted Subsidiary is
excluded in the calculation of
Adjusted Consolidated Net Income pursuant to
clause (iii) of the definition
thereof (but only in the same proportion as the net
income of such Restricted
Subsidiary is excluded from the calculation of Adjusted
Consolidated Net Income
pursuant to clause (iii) of the definition thereof).
"Corporate Trust Office"
means the office of the Trustee at which the
corporate trust business of the Trustee
shall, at any particular time, be
principally administered, which office
is, at the date of this Indenture,
located at U.S. Bank National Association, 100
Wall Street, 16th Floor, New
York, New York 10005.
"Credit Agreement" means the credit
agreement dated as of June 30, 2005, as
amended prior to the Closing Date,
among the Company and certain of
its
subsidiaries, the lenders from time to time party thereto,
Deutsche Bank AG New
York Branch, as administrative agent, Bank of America,
N.A. and Morgan Stanley
Bank, as co-syndication agents, and BNP
Paribas and J.P. Morgan Chase Bank,
N.A., as co-documentation agents, together with
the related documents thereto
(including without limitation any Guarantees and
security documents), in each
case as the Indebtedness under such
agreements may be increased and such
agreements may be amended (including any amendment
and restatement thereof),
supplemented, renewed, extended,
substituted, replaced or otherwise modified
from time to time, including
any agreement extending the maturity
of,
refinancing or otherwise restructuring
(including, but not limited to, the
inclusion of additional borrowers
thereunder that are Subsidiaries of the
Company) all or any portion of the Indebtedness
under such agreement or any
successor agreement, as such agreement may
be amended, renewed, extended,
substituted, replaced, restated and otherwise modified from time to
time.
"Currency Agreement" means any
foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Default" means any event that
is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" shall mean The
Depository Trust Company, its nominees, and
their respective successors.
"Disqualified Stock" means any
class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required
to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of
the holder of
such class or series of Capital Stock at any time prior to
the Stated Maturity
of the Notes or (iii) convertible into
or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or
Indebtedness having a scheduled
maturity prior to the Stated Maturity of the
Notes; provided that any Capital
Stock that would not constitute Disqualified Stock but
for provisions thereof
giving holders thereof the right to require such Person to
repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or
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<PAGE>
"change of control" occurring prior to the Stated
Maturity of the Notes shall
not constitute Disqualified Stock if the
"asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable
to the holders
of such Capital Stock than the provisions contained in
Section 4.11 and Section
4.12 and such Capital Stock specifically
provides that such Person will not
repurchase or redeem any such stock pursuant to
such provision prior to the
Company's repurchase of such Notes as are required to be
repurchased pursuant to
Section 4.11 and Section 4.12.
"Event of Default" has the meaning
provided in Section 6.01.
"Excess Proceeds" has the meaning provided
in Section 4.11.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended.
"fair market value" means the price
that would be paid in an arm's-length
transaction between an informed and willing seller
under no compulsion to sell
and an informed and willing buyer under no
compulsion to buy, as determined
(except with respect to amounts less than $1,000,001) in good faith
by the Board
of Directors, whose determination shall be
conclusive if evidenced by a Board
Resolution. Notwithstanding the foregoing, in the event that
(1) the Company or
any of its Restricted Subsidiaries shall
dedicate assets substantially to
products sold to any principal customer and (2) such customer shall
require that
the Company or such Restricted Subsidiary
grant such customer an option to
purchase such assets (or the entity owning
such assets), then "fair market
value" shall, for purposes of Section 4.11, be
deemed to be the price paid by
such customer for such assets or such entity.
"Four Quarter Period"
has the meaning provided in the
definition of
"Interest Coverage Ratio" contained in Section 1.01.
"GAAP" means generally accepted
accounting principles in the United States
of America as in effect as of the Closing Date
applied on a basis consistent
with the principles, methods,
procedures and practices employed in
the
preparation of the Company's audited financial
statements, including, without
limitation, those set forth in the opinions and pronouncements of
the Accounting
Principles Board of the American Institute of Certified
Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in
such other statements by such other entity as approved by a
significant segment
of the accounting profession. All ratios and computations
contained or referred
to in this Indenture shall be computed in
conformity with GAAP applied on a
consistent basis, except that calculations
made for purposes of determining
compliance with the terms of the covenants and
with other provisions of this
Indenture shall be made without giving effect to (i)
the amortization or write
off of unamortized deferred financing costs and any discounts,
premiums, fees or
expenses incurred in connection with
the offering, redemption or early
extinguishment of any Indebtedness; (ii) except
as otherwise provided, the
amortization of goodwill and other intangible assets and any
write down of such
goodwill or assets as may be required
or permitted by FAS No. 142; (iii)
non-cash amounts recorded (or required to be recorded)
in accordance with FAS
No. 133 and related amendments; (iv)
non-cash adjustments resulting from
equity-based compensation; and
(v) unusual charges (including,
without
limitation, rationalization charges) recorded in
an applicable period to the
extent that cash is not expended during such period,
but
7
<PAGE>
effect shall be given in any future period to the
extent that any cash payment
is made on account of such a non-cash
unusual charge taken in a previous
applicable period.
"Global Notes" has the meaning provided in
Section 2.01.
"Guarantee" means any
obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any
Indebtedness of any other Person and,
without limiting the generality of the foregoing,
any obligation, direct or
indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of)
such Indebtedness of
such other Person (whether arising by virtue of partnership
arrangements, or by
agreements to keep-well, to purchase
assets, goods, securities or services
(unless such purchase arrangements are on
arm's-length terms and are entered
into in the ordinary course of
business), to take-or-pay, or to
maintain
financial statement conditions or otherwise) or (ii)
entered into for purposes
of assuring in any other manner the obligee of such
Indebtedness of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or
in part); provided that the term "Guarantee" shall not
include endorsements for
collection or deposit in the ordinary course of business. The
term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" means the registered holder of
any Note.
"Incur" means, with respect to any
Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or
with respect to, or become
responsible for, the payment of, contingently or
otherwise, such Indebtedness,
including an "Incurrence" of Acquired
Indebtedness; provided that neither the
accrual of interest nor the accretion of
original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness"
means, with respect to any
Person at any date of
determination (without duplication), (i)
all indebtedness of such Person for
borrowed money, (ii) all obligations
of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) all obligations of such
Person in respect of letters of credit or other similar
instruments (including
reimbursement obligations with respect thereto, but
excluding obligations with
respect to letters of credit (including
trade letters of credit) securing
obligations (other than obligations described in (i) or (ii)
above or (v), (vi)
or (vii) below) entered into in the ordinary course of
business of such Person
to the extent such letters of credit are not drawn upon or,
if drawn upon, to
the extent such drawing is reimbursed no
later than the third Business Day
following receipt by such Person of a
demand for reimbursement), (iv) all
obligations of such Person to pay the deferred
and unpaid purchase price of
property or services, which purchase price is due more than six
months after the
date of placing such property in service or taking delivery and
title thereto or
the completion of such services, except Trade
Payables, (v) all Capitalized
Lease Obligations and Attributable Debt, (vi) all
Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not
such Indebtedness
is assumed by such Person; provided that the amount of such
Indebtedness shall
be the lesser of (A) the fair market
value of such asset at such date of
determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of
other Persons Guaranteed by such Person to
the extent such Indebtedness is
Guaranteed by such Person and (viii) to the extent
not otherwise included in
this definition, obligations under
Currency Agreements and Interest Rate
Agreements. The amount of Indebtedness of any
Person at any date shall be the
outstanding balance at such date of all unconditional
obligations as described
8
<PAGE>
above and, with respect to contingent obligations, the
maximum liability upon
the occurrence of the contingency giving rise to the
obligation, provided (A)
that the amount outstanding at any time of any Indebtedness issued
with original
issue discount is the face amount of
such Indebtedness less the remaining
unamortized portion of the original issue discount of
such Indebtedness at the
time of its issuance as determined in
conformity with GAAP, (B) that money
borrowed and set aside at the time of the
Incurrence of any Indebtedness in
order to prefund the payment of the interest on such
Indebtedness shall not be
deemed to be "Indebtedness," (C) that
Indebtedness shall not include any
liability for federal, state, local or other taxes and
(D) in clarification of
this definition, any unused commitment under the Credit
Agreement or any other
agreement relating to Indebtedness shall not be treated as
outstanding.
"Indenture" means this
Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures
supplemental
to this Indenture entered into pursuant to the
applicable provisions of this
Indenture.
"Institutional Accredited
Investor" means an institution that
is an
"accredited investor" as that term is defined in Rule 501(a)(1),
(2), (3) or (7)
under the Securities Act.
"Interest Coverage Ratio" means, on
any Transaction Date, the ratio of (i)
the aggregate amount of Consolidated EBITDA for the then most
recent four fiscal
quarters prior to such Transaction Date for which
reports have been filed with
the Commission pursuant to Section 4.18 (the "Four Quarter
Period") to (ii) the
-------------------
aggregate Consolidated Interest Expense during
such Four Quarter Period. In
making the foregoing calculation, (A) pro
forma effect shall be given to any
Indebtedness Incurred or repaid during the
period (the "Reference Period")
-----------------
commencing on the first day of the Four
Quarter Period and ending on the
Transaction Date (other than Indebtedness Incurred or
repaid under a revolving
credit or similar arrangement to the extent of
the commitment thereunder (or
under any predecessor revolving credit or similar
arrangement) in effect on the
last day of such Four Quarter Period unless any portion of
such Indebtedness is
projected, in the reasonable judgment of the senior
management of the Company,
to remain outstanding for a period in excess of 12
months from the date of the
Incurrence thereof) and any Indebtedness to
be repaid within 60 days of the
Transaction Date (except to the extent such
repayment will be financed by
Incurring Indebtedness after the
Transaction Date), in each case as if such
Indebtedness had been Incurred or repaid on
the first day of such Reference
Period; (B) Consolidated Interest
Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on
a pro forma basis
and bearing a floating interest rate shall be computed as if
the rate in effect
on a date that is no more than 75 days prior to the
Transaction Date (taking
into account any Interest Rate Agreement applicable to such
Indebtedness if such
Interest Rate Agreement has a
remaining term in excess of 12 months or, if
shorter, at least equal to the remaining term of such Indebtedness)
had been the
applicable rate for the entire period; (C) pro
forma effect shall be given to
Asset Dispositions and Asset Acquisitions (including giving
pro forma effect to
the application of proceeds of any Asset
Disposition) that occur during such
Reference Period as if they had occurred and such
proceeds had been applied on
the first day of such Reference Period; provided that (x)
with respect to Asset
Acquisitions, pro forma effect shall be given to any cost
reductions the Company
anticipates if the Company delivers to the
Trustee an Officers' Certificate
executed by the Chief Financial
Officer of the Company certifying to
and
describing and quantifying with reasonable
specificity the cost reductions
expected to be attained within the first year after such
Asset
9
<PAGE>
Acquisition and (y) at the Company's election,
in connection with any Asset
Acquisition with respect to which an income statement
for the acquired assets
for the preceding four fiscal quarters is not
available, the Company shall, in
good faith, prepare an estimated income
statement for such four quarters and
shall deliver to the Trustee an Officers' Certificate
and a certificate of an
investment bank or accounting firm of national standing
expressly stating that,
in their opinion, such estimated
income statement reasonably reflects the
results that would have occurred had such assets been
purchased by the Company
or a Restricted Subsidiary on the first day of the Four
Quarter Period and (D)
pro forma effect shall be given to asset
dispositions and asset acquisitions
(including giving pro forma effect to the application
of proceeds of any asset
disposition) that have been made by any Person
that has become a Restricted
Subsidiary or has been merged with or
into the Company or any Restricted
Subsidiary during such Reference Period and that would
have constituted Asset
Dispositions or Asset Acquisitions had such
transactions occurred when such
Person was a Restricted Subsidiary as if
such asset dispositions or asset
acquisitions were Asset Dispositions or Asset Acquisitions
that occurred on the
first day of such Reference Period; provided that to the
extent that clause (C)
or (D) of this sentence requires that pro
forma effect be given to an Asset
Acquisition or Asset Disposition, such pro forma calculation shall
be based upon
the four full fiscal quarters immediately preceding the
Transaction Date of the
Person, or division, operating unit or line of business of
the Person, that is
acquired or disposed for which financial information is
available.
"Interest Payment Date" means
each semiannual interest payment date on
February 15 and August 15 of each year, commencing August 15,
2009.
"Interest Rate Agreement"
means any interest rate protection agreement,
interest rate future agreement, interest rate option
agreement, interest rate
swap agreement, interest rate cap agreement,
interest rate collar agreement,
interest rate hedge agreement, option or
future contract or other similar
agreement or arrangement.
"Investment" in any Person means any
direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of
Guarantee or
similar arrangement; but excluding advances to customers in
the ordinary course
of business that are, in conformity with GAAP, recorded as
accounts receivable
on the balance sheet of the Company or its Restricted
Subsidiaries) or capital
contribution to (by means of any transfer of cash or other property
to others or
any payment for property or services for the account or use
of others), or any
purchase or acquisition of Capital Stock,
bonds, notes, debentures or other
similar instruments issued by, such Person and shall include (i)
the designation
of a Restricted Subsidiary as an
Unrestricted Subsidiary and (ii) the fair
market value of the Capital Stock (or any other Investment), held
by the Company
or any of its Restricted Subsidiaries, of (or in) any Person
that has ceased to
be a Restricted Subsidiary, including
without limitation, by reason of any
transaction permitted by clause (iii) of Section
4.06; provided that the fair
market value of the Investment remaining in any Person
that has ceased to be a
Restricted Subsidiary shall not exceed the
aggregate amount of Investments
previously made in such Person valued at the time
such Investments were made
less the net reduction of such Investments
as a result of any payments or
transfers of assets by such
Person to the Company or
its Restricted
Subsidiaries. For purposes of the definition of
"Unrestricted Subsidiary" and
Section 4.04, (i) "Investment" shall include the fair market value
of the assets
(net of liabilities (other than
liabilities to the Company or any of its
Restricted Subsidiaries)) of any Restricted
Subsidiary at the time that such
10
<PAGE>
Restricted Subsidiary is designated an Unrestricted
Subsidiary, (ii) the fair
market value of the assets (net of liabilities (other
than liabilities to the
Company or any of its Restricted Subsidiaries)) of any
Unrestricted Subsidiary
at the time that such Unrestricted
Subsidiary is designated a Restricted
Subsidiary shall be considered a reduction in outstanding
Investments and (iii)
any property transferred to or from an Unrestricted
Subsidiary shall be valued
at its fair market value at the time of such transfer.
"Lien" means any mortgage, pledge,
security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional
sale or other
title retention agreement or lease in the nature
thereof or any agreement to
give any security interest).
"Limited Originator
Recourse" means a reimbursement obligation
to the
Company or a Restricted Subsidiary in connection with a
drawing on a letter of
credit, revolving loan commitment, cash collateral account or
other such credit
enhancement issued to support Indebtedness of a
Securitization Entity under a
facility for the financing of trade receivables;
provided, that the available
amount of any such form of credit enhancement at any
time shall not exceed 10%
of the principal amount of such Indebtedness at such time.
"Moody's" means Moody's Investors Service,
Inc. and its successors.
"Net Cash Proceeds" means, (a) with
respect to any Asset Sale, the proceeds
of such Asset Sale in the form of cash or cash equivalents,
including payments
in respect of deferred payment obligations (to the
extent corresponding to the
principal, but not interest, component
thereof) when received in the form of
cash or cash equivalents (except to the extent such
obligations are financed or
sold with recourse to the Company or any
Restricted Subsidiary) and proceeds
from the conversion of other property received
when converted to cash or cash
equivalents, net of (i) brokerage
commissions and other fees and expenses
(including fees and expenses of counsel and investment
bankers) related to such
Asset Sale, (ii) provisions for all
taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset
Sale without regard
to the consolidated results of operations
of the Company and its Restricted
Subsidiaries, taken as a whole, (iii) payments made to repay
Indebtedness or any
other obligation outstanding at the time of such Asset
Sale that either (A) is
secured by a Lien on the property or assets sold or (B)
is required to be paid
as a result of such sale and (iv) appropriate
amounts to be provided by the
Company or any Restricted Subsidiary as a
reserve against any liabilities
associated with such Asset Sale, including,
without limitation, pension and
other post-employment benefit liabilities, liabilities
related to environmental
matters and liabilities under any indemnification
obligations associated with
such Asset Sale, all as determined in conformity with
GAAP or (b) with respect
to any issuance or sale of Capital Stock, the proceeds of
such issuance or sale
in the form of cash or cash equivalents,
including payments in respect of
deferred payment obligations (to the extent corresponding to the
principal, but
not interest, component thereof) when
received in the form of cash or cash
equivalents (except to the extent such
obligations are financed or sold with
recourse to the Company or any Restricted
Subsidiary) and proceeds from the
conversion of other property
received when converted to cash
or cash
equivalents, net of attorney's fees,
accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and
brokerage, consultant and
other fees incurred in connection with such
issuance or sale and net of taxes
paid or payable as a result thereof.
11
<PAGE>
"Non-Global Purchaser" has the meaning
provided in Section 2.01.
"Non-Recourse Debt" means
Indebtedness:
(1) as to which neither the Company nor
any of its Restricted Subsidiaries,
other than a Securitization Entity,
if applicable, (a) provides credit
support of any kind, including any undertaking,
agreement or instrument that
would constitute Indebtedness, (b)
is directly or indirectly liable as a
guarantor or otherwise or (c) constitutes the lender;
and
(2) as to which the lenders have
been notified in writing that they will
not have any recourse to the stock or
assets of the Company or any of its
Restricted Subsidiaries (other than a
Securitization Entity, if applicable),
other than with respect to Standard
Securitization Undertakings and Limited
Originator Recourse.
"Non-U.S. Person" means a person who
is not a U.S. person, as defined in
Regulation S.
"Notes" means any of the
securities, as defined in the first paragraph of
the recitals hereof, that are authenticated and delivered
under this Indenture.
For all purposes of this Indenture,
the term "Notes" shall include
any
Registered Notes to be issued and
exchanged for any Notes pursuant to the
Registration Rights Agreement and this
Indenture and, for purposes of this
Indenture, all Notes and Registered Notes shall vote
together as one series of
Notes under this Indenture.
"Obligations" means any
principal, premium, if any, interest
(including
interest accruing on or after the filing of any petition
in bankruptcy or for
reorganization relating to the Company or its
Restricted Subsidiaries, at the
rate provided for in the documentation with respect
thereto, whether or not a
claim for post-filing interest is allowed in such
proceeding), penalties, fees,
charges, expenses, indemnifications,
reimbursement obligations, damages,
including liquidated damages, guarantees
and other liabilities or amounts
payable under the documentation
governing any Indebtedness or in
respect
thereof.
"Offer to Purchase" means an
offer to purchase Notes by the Company from
the Holders commenced by mailing a
notice to the Trustee and each Holder
stating: (i) the covenant pursuant to which the offer is being made
and that all
Notes validly tendered will be accepted for payment on
a pro rata basis; (ii)
the purchase price and the date of purchase
(which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such
notice is mailed)
(the "Payment Date"); (iii) that any Note not tendered
will continue to accrue
interest pursuant to its terms; (iv) that, unless
the Company defaults in the
payment of the purchase price, any Note accepted
for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after
the Payment Date;
(v) that Holders electing to have a Note
purchased pursuant to the Offer to
Purchase will be required to surrender the Note, together with the
form entitled
"Option of the Holder to Elect
Purchase" on the reverse side of the Note
completed, to the Paying Agent at the address specified
in the notice prior to
the close of business on the Business Day
immediately preceding the Payment
Date; (vi) that Holders will be entitled to
withdraw their election if the
Paying Agent receives, not later than
the close of business on the third
Business Day
12
<PAGE>
immediately preceding the Payment Date, a telegram,
facsimile transmission or
letter setting forth the name of such Holder,
the principal amount of Notes
delivered for purchase and a statement that
such Holder is withdrawing his
election to have such Notes purchased; and (vii) that
Holders whose Notes are
being purchased only in part will be issued new Notes equal in
principal amount
to the unpurchased portion of the Notes
surrendered; provided that each Note
purchased and each new Note issued shall be in a
principal amount of $2,000 or
integral multiples of $1,000 in excess thereof. On the Payment
Date, the Company
shall (i) accept for payment on a pro rata
basis Notes or portions thereof
tendered pursuant to an Offer to Purchase; (ii)
deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or
portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the
Trustee all Notes
or portions thereof so accepted
together with an Officers'
Certificate
specifying the Notes or portions thereof accepted
for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment
in an amount equal to the purchase
price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal
in principal amount to
any unpurchased portion of the Note
surrendered; provided that each Note
purchased and each new Note issued shall be in a
principal amount of $2,000 or
integral multiples of $1,000 in excess
thereof. The Company will publicly
announce the results of an Offer to Purchase as soon as
practicable after the
Payment Date. The Trustee shall act
as the Paying Agent for an Offer to
Purchase. The Company will comply with Rule 14e-1 under the
Exchange Act and any
other securities laws and regulations
thereunder to the extent such laws and
regulations are applicable, in the event
that the Company is required to
repurchase Notes pursuant to an Offer to Purchase.
"Officer" means, with
respect to the Company, (i) the Chief
Executive
Officer, a President, any Vice President (including any Executive
Vice President
or Senior Vice President), the Chief Financial Officer,
and (ii) the Treasurer
or any Assistant Treasurer, or the Secretary or any Assistant
Secretary.
"Officers' Certificate" means a
certificate signed by one Officer listed in
clause (i) of the definition thereof and one
Officer listed in clause (ii) of
the definition thereof. Each such Officers' Certificate (other than
certificates
provided pursuant to TIA Section
314(a)(4)) shall include the statements
provided for in Section 11.04.
"Offshore Global Note" has the meaning
provided in Section 2.01.
"Offshore Physical Notes" has the meaning
provided in Section 2.01.
"Opinion of Counsel" means a
written opinion signed by legal counsel who
may be an employee of or counsel to the Company. Each
such Opinion of Counsel
shall include the statements provided for
in Sections 2.03 and 11.04 to the
extent required by the provisions of such Sections.
"Paying Agent" means any
Person authorized by the Company to pay
the
principal of (and premium, if any, on) or interest on any Notes on
behalf of the
Company. The term "Paying Agent" includes any additional Paying
Agent.
13
<PAGE>
"Payment Date" has the
meaning provided in the definition of "Offer
to
Purchase" contained in Section 1.01.
"Permitted Holders" means any of the
following persons:
(1) Mr. D. Greg Horrigan and Mr. R. Philip
Silver;
(2) Affiliates, siblings, children and
other lineal descendants, spouses or
former spouses, widows or widowers and estates of either of the
Persons referred
to in clause (1) above;
(3) any trust having as its sole
beneficiaries one or more of the Persons
referred to in clauses (1) or (2) above; and
(4) any Person a majority of the
voting power of the outstanding Capital
Stock of which is owned by one or more of the Persons
referred to in clauses
(1), (2) or (3) above.
"Permitted Investment"
means (i) an Investment in the
Company or a
Restricted Subsidiary or a Person
which will, upon the making of
such
Investment, become a Restricted Subsidiary or be merged or
consolidated with or
into or transfer or convey all or substantially all its
assets to, the Company
or a Restricted Subsidiary; provided that such
Person's primary business is
related, ancillary or complementary to the
businesses of the Company and its
Restricted Subsidiaries on the date of such
Investment; (ii) Temporary Cash
Investments; (iii) payroll, travel and similar
advances to cover matters that
are expected at the time of such advances ultimately to
be treated as expenses
in accordance with GAAP; (iv) stock,
obligations or securities received in
satisfaction of judgments or in settlement of claims;
(v) Investments, to the
extent the consideration therefor consists
solely of the Common Stock of the
Company; (vi) Currency Agreements,
Interest Rate Agreements and commodity
hedging agreements entered into to protect against
currency, interest rate or
commodity price fluctuations (but not
Currency Agreements and Interest Rate
Agreements entered into for speculation); (vii)
Guarantees of Indebtedness of
the Company and of Restricted Subsidiaries
permitted under Section 4.03; and
(viii) loans or advances to
employees of the Company or its
Restricted
Subsidiaries, not to exceed $10 million at any one time
outstanding.
"Permitted Liens" means (i)
Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith
by appropriate legal
proceedings promptly instituted and diligently conducted and for
which a reserve
or other appropriate provision, if any, as shall be required
in conformity with
GAAP shall have been made; (ii) statutory
and common law Liens of landlords
under leases; (iii) customary bankers Liens, rights of setoff
and other similar
Liens arising in the ordinary course of business; (iv)
statutory and common law
Liens of carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or
other similar Liens arising in the ordinary course of
business and with respect
to amounts not yet delinquent or being contested in
good faith by appropriate
legal proceedings promptly instituted and diligently
conducted and for which a
reserve or other appropriate
provision, if any, as shall be
required in
conformity with GAAP shall have been made; (v) Liens
incurred or deposits made
in the ordinary course of business in connection
with workers' compensation,
unemployment insurance and other types of social
security; (vi) Liens incurred
or deposits made to secure the performance of tenders, bids,
leases, statutory
or regulatory obligations, bankers'
acceptances, surety and
14
<PAGE>
appeal bonds, government contracts, performance
and return-of-money bonds and
other obligations of a similar nature
incurred in the ordinary course of
business (exclusive of obligations for the payment of
borrowed money); (vii)
easements, rights-of-way, municipal and zoning
ordinances and similar charges,
encumbrances, title defects or other
irregularities that do not materially
interfere with the ordinary course of business of the Company and
its Restricted
Subsidiaries, taken as a whole; (viii) Liens (including
extensions and renewals
thereof) upon real or personal property acquired after the Closing
Date securing
Indebtedness Incurred under Section 4.03(a)(viii);
provided that (a) such Lien
is created solely for the purpose
of securing Indebtedness Incurred, in
accordance with Section 4.03, to
finance the cost (including the cost of
improvement or construction) of the item of property or
assets subject thereto
and such Lien is created prior to, at the time of or within six
months after the
later of the acquisition, the completion of construction or
the commencement of
full operation of such property, (b) the principal
amount of the Indebtedness
secured by such Lien does not exceed 100%
of such cost and (c) any such Lien
shall not extend to or cover any property or
assets other than such item of
property or assets and any improvements on such item;
(ix) leases or subleases
granted to others that do not materially interfere with the
ordinary course of
business of the Company and its Restricted
Subsidiaries, taken as a whole; (x)
Liens encumbering property or assets under construction arising
from progress or
partial payments by a customer of the Company or
its Restricted Subsidiaries
relating to such property or assets; (xi) any interest
or title of a lessor in
the property subject to any lease (other than any
property that is the subject
of a Sale and Leaseback Transaction); (xii) Liens
arising from filing Uniform
Commercial Code financing statements regarding leases; (xiii)
Liens on property
of, or on shares of Capital Stock or Indebtedness of, any Person
existing at the
time such Person becomes, or becomes a part of, the
Company or any Restricted
Subsidiary; provided that such Liens do not extend to
or cover any property or
assets of the Company or any Restricted
Subsidiary other than the property or
assets acquired; (xiv) Liens in
favor of the Company or any
Restricted
Subsidiary; (xv) Liens arising from the rendering of a
final judgment or order
against the Company or any Restricted Subsidiary that
does not give rise to an
Event of Default; (xvi) Liens securing reimbursement obligations
with respect to
letters of credit that encumber documents and other
property relating to such
letters of credit and the products and proceeds
thereof; (xvii) Liens in favor
of customs and revenue authorities arising as a matter of law
to secure payment
of customs duties in connection with the
importation of goods; (xviii) Liens
encumbering customary initial deposits and margin deposits, and
other Liens that
are within the general parameters customary in the industry
and incurred in the
ordinary course of business, in each case, securing
Indebtedness under Interest
Rate Agreements and Currency Agreements and forward
contracts, options, future
contracts, futures options or similar agreements or arrangements
designed solely
to protect the Company or any of its Restricted
Subsidiaries from fluctuations
in interest rates, currencies or the price of
commodities; (xix) Liens arising
out of conditional sale, title retention, consignment
or similar arrangements
for the sale of goods entered into by the
Company or any of its Restricted
Subsidiaries in the ordinary course of business
in accordance with the past
practices of the Company and its Restricted
Subsidiaries prior to the Closing
Date; (xx) Liens consisting of
escrows or deposits in connection
with
acquisitions or potential acquisitions;
and (xxi) Liens on or sales
of
receivables.
"Person" means an individual, a
corporation, a partnership, a
limited liability company, an association, a trust or any other
entity or
organization, including a government or political subdivision or an
agency or
instrumentality thereof.
15
<PAGE>
"Physical Notes" has the meaning provided
in Section 2.01.
"Preferred Stock" means, with
respect to any Person, any and all shares,
interests, participations or other equivalents
(however designated, whether
voting or non-voting) of such Person's preferred or
preference stock, whether
now outstanding or issued after the date of this Indenture,
including, without
limitation, all series and classes of such preferred or preference
stock.
"principal" of a debt
security, including the Notes, means the principal
amount due on the Stated Maturity as shown on such debt
security.
"Private Placement
Legend" means the legend initially set forth on
the
Notes in the form set forth in Section 2.02.
"Purchase Money Note" means a
promissory note of a Securitization Entity
evidencing a line of credit, which may be irrevocable,
from the Company or any
Restricted Subsidiary in connection with a Qualified Securitization
Transaction,
which note shall be repaid from cash available to
the Securitization Entity,
other than amounts required to
be established as reserves
pursuant to
agreements, amounts paid to investors in respect
of interest, principal and
other amounts owing to such investors and amounts paid
in connection with the
purchase of newly generated receivables.
"QIB" means a "qualified institutional
buyer" as defined in Rule 144A.
"Qualified Securitization
Transaction" means any transaction or series of
transactions pursuant to which the Company or any of its Restricted
Subsidiaries
may sell, convey or otherwise transfer to (a) a
Securitization Entity, in the
case of a transfer by the Company or any of its Restricted
Subsidiaries, and (b)
any other Person, in case of a transfer by a Securitization Entity,
or may grant
a security interest in, any receivables, whether or not
existing or arising or
acquired in the future, of the Company or any of its
Restricted Subsidiaries,
and any assets related thereto including, without
limitation, all collateral
securing such receivables, all contracts and contract rights
and all Guarantees
or other obligations in respect
of such receivables, proceeds
of such
receivables and other assets, including contract
rights, which are customarily
transferred or in respect of which security interests are
customarily granted in
connection with asset securitization
transactions involving receivables,
collectively, "transferred assets";
provided, that, in the case of any such
transfer by the Company or any of its Restricted
Subsidiaries, the transferor
receives cash or Purchase Money Notes in an amount which,
when aggregated with
the cash and Purchase Money Notes received by the
Company and its Restricted
Subsidiaries upon all other such transfers of
transferred assets during the
ninety days preceding such transfer, is at least equal
to 75% of the aggregate
face amount of all receivables so
transferred during such day and the ninety
preceding days.
"Redemption Date" means, when used with
respect to any Note to be redeemed,
the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price"
means, when used with respect to
any Note to be
redeemed, the price at which such Note is
to be redeemed pursuant to this
Indenture.
16
<PAGE>
"Registered Notes" means any
securities of the Company containing terms
identical to the Notes (except that such securities (i) will be
registered under
the Securities Act and (ii) will not
contain terms with respect to transfer
restrictions) that are issued and
exchanged for the Notes pursuant to the
Registration Rights Agreement.
"Registrar" has the meaning provided in
Section 2.04.
"Registration Rights
Agreement" means the Registration Rights Agreement,
dated as of May 12, 2009, between the Company and the
Initial Purchasers named
therein.
"Registration Statement" means
the Registration Statement as defined and
described in the Registration Rights Agreement.
"Regular Record Date" for the interest
payable on any Interest Payment Date
means the February 1 or August 1 (whether or not a
Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under
the Securities Act.
"Responsible Officer", when
used with respect to the Trustee, means the
chairman or any vice chairman of the board of
directors, the chairman or any
vice chairman of the executive committee of the board of directors,
the chairman
of the trust committee, the president, any vice
president, any assistant vice
president, the secretary, any assistant secretary, the
treasurer, any assistant
treasurer, the cashier, any assistant cashier,
any trust officer or assistant
trust officer, the controller or any assistant
controller or any other officer
of the Trustee customarily performing functions
similar to those performed by
any of the above designated officers
and also means, with respect to a
particular corporate trust matter, any
other officer to whom such matter is
referred because of his or her knowledge of and familiarity
with the particular
subject.
"Restricted Payments" has the meaning
provided in Section 4.04.
"Restricted Subsidiary" means
any Subsidiary of the Company other than an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the
Securities Act.
"Sale and Leaseback Transaction" means a
transaction whereby a Person sells
or otherwise transfers assets or properties and then or
thereafter leases such
assets or properties or any part thereof or any other assets or
properties which
such Person intends to use for substantially the same purpose or
purposes as the
assets or properties sold or otherwise transferred.
"Secured Debt Cap" means, on
any date, an amount equal to 3.5 times the
Company's Consolidated EBITDA for the Four Quarter
Period. For the purpose of
making the computation referred to in the prior
sentence, Consolidated EBITDA
shall be calculated on a pro forma basis in accordance
with the definition of
"Interest Coverage Ratio."
17
<PAGE>
"Securities Act" means the Securities Act
of 1933, as amended.
"Securitization Entity" means a
Wholly Owned Subsidiary of the Company, or
another Person in which the Company or
any Restricted Subsidiary makes an
Investment and to which the Company or any
Restricted Subsidiary transfers
receivables and related assets, that engages in
no activities other than in
connection with the financing of receivables and that is designated
by the Board
of Directors, as provided below, as a
Securitization Entity (a) no portion of
the Indebtedness or any other Obligations, contingent or otherwise,
of which (1)
is guaranteed by the Company or any
Restricted Subsidiary, other than the
Securitization Entity, other
than pursuant to Standard
Securitization
Undertakings or Limited Originator Recourse, (2) is recourse to or
obligates the
Company or any Restricted Subsidiary, other than the
Securitization Entity, in
any way other than pursuant to Standard Securitization
Undertakings or Limited
Originator Recourse or (3) subjects any property or asset of
the Company or any
Restricted Subsidiary, other than the
Securitization Entity, directly or
indirectly, contingently or otherwise, to the
satisfaction thereof, other than
pursuant to Standard Securitization Undertakings or Limited
Originator Recourse,
(b) with which neither the Company
nor any Restricted Subsidiary has any
material contract, agreement, arrangement or
understanding other than on terms
no less favorable to the Company or such Restricted
Subsidiary than those that
might be obtained at the time from
Persons that are not Affiliates of the
Company, other than fees payable in
the ordinary course of business
in
connection with servicing receivables of such
entity and (c) to which neither
the Company nor any Restricted Subsidiary has
any obligation to maintain or
preserve such entity's financial
condition or cause such entity to achieve
certain levels of operating results.
Any such designation by the Board of
Directors shall be evidenced to the
Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors giving
effect to such
designation and an Officers' Certificate
certifying that such designation
complied with the foregoing conditions.
"Security Register" has the meaning
provided in Section 2.04.
"Significant Subsidiary"
means, at any date of
determination, any
Restricted Subsidiary that, together with its
Subsidiaries, (i) for the most
recent fiscal year of the
Company, accounted for more than
10% of the
consolidated revenues of the Company and its Restricted
Subsidiaries or (ii) as
of the end of such fiscal year,
was the owner of more than 10%
of the
consolidated assets of the Company and its Restricted
Subsidiaries, all as set
forth on the most recently available consolidated
financial statements of the
Company for such fiscal year.
"6-3/4% Indenture" means
the indenture dated as of November 14,
2003,
between the Company, as issuer, and National City Bank, N.A., as
trustee.
"Standard Securitization
Undertakings" means representations, warranties,
covenants and indemnities entered into by the Company or any
Subsidiary that are
reasonably customary in receivables securitization
transactions.
"S&P" means Standard & Poor's
Ratings Group and its successors.
"Stated Maturity" means, (i)
with respect to any debt security, the date
specified in such debt security as the fixed date on which the
final installment
of principal of such debt security is due and payable
and (ii) with respect to
any scheduled installment of principal of or
18
<PAGE>
interest on any debt security, the date specified in
such debt security as the
fixed date on which such installment is due and payable.
"Subsidiary"
means, with respect to any
Person, any corporation,
association or other business entity of which more than 50%
of the voting power
of the outstanding Voting Stock is owned, directly or indirectly,
by such Person
and one or more other Subsidiaries of such Person.
"Subsidiary Guarantor" means
any Restricted Subsidiary which provides a
Subsidiary Guarantee of the Company's obligations under
this Indenture and the
Notes.
"Temporary Cash
Investment" means any of the
following: (i) direct
obligations of the United States of America or any agency thereof
or obligations
fully and unconditionally guaranteed by the
United States of America or any
agency thereof, (ii) time deposit accounts,
certificates of deposit and money
market deposits maturing within one year of the
date of acquisition thereof
issued by a bank or trust company which is
organized under the laws of the
United States of America, any state thereof or any foreign country
recognized by
the United States of America, and which bank or
trust company has capital,
surplus and undivided profits
aggregating in excess of $50 million (or the
foreign currency equivalent thereof) and has outstanding debt which
is rated "A"
(or such similar equivalent rating)
or higher by at least one nationally
recognized statistical rating organization
(as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered
broker dealer
or mutual fund distributor, (iii) repurchase obligations with a
term of not more
than 30 days for underlying securities of the
types described in clause (i)
above entered into with a bank meeting the
qualifications described in clause
(ii) above, (iv) commercial paper, maturing
not more than one year after the
date of acquisition, issued by a
corporation (other than an Affiliate of the
Company) organized and in existence under
the laws of the United States of
America, any state thereof or any foreign
country recognized by the United
States of America with a rating at the time as of which any
investment therein
is made of "P-1" (or higher) according to Moody's or "A-1" (or
higher) according
to S&P, and (v) securities with maturities of one year or
less from the date of
acquisition issued or fully and
unconditionally guaranteed by any state,
commonwealth or territory of the United States of
America, or by any political
subdivision or taxing authority
thereof, and rated at least "A" by S&P or
Moody's.
"TIA" or "Trust Indenture Act"
means the Trust Indenture Act of 1939 (15
U.S. Code ss.ss. 77aaa-77bbb), as in effect
on the date this Indenture was
executed, except as provided in Section 9.06.
"Trade Payables" means, for any
Person, any accounts payable or any other
indebtedness or monetary obligation to
trade creditors created, assumed or
Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary
course of business related to the acquisition of goods or
services.
"Transaction Date"
means, with respect to
the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries,
the date such
Indebtedness is to be Incurred and, with respect to any Restricted
Payment, the
date such Restricted Payment is to be made.
19
<PAGE>
"Treasury Rate" means the yield to
maturity at the time of computation of
United States Treasury securities with a
constant maturity (as compiled and
published in the most recent Federal
Reserve Statistical Release H.15 (519)
which has become publicly available at least two Business Days
prior to the date
fixed for prepayment (or, if such Statistical Release
is no longer published,
any publicly available source for similar market data)) most nearly
equal to the
then remaining term of the Notes to August 15, 2013,
provided, however, that if
the then remaining term to August 15, 2013 is not equal to the
constant maturity
of a United States Treasury security for which a weekly
average yield is given,
the Treasury Rate shall be obtained by linear
interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average
yields of United States
Treasury securities for which such yields are
given, except that if the then
remaining term of the Notes to August 15, 2013 is less than one
year, the weekly
average yield on actually traded United States Treasury securities
adjusted to a
constant maturity of one year shall be used.
"Trustee" means the party
named as such in the first paragraph of this
Indenture until a successor replaces it in
accordance with the provisions of
Article Seven of this Indenture and thereafter means such
successor.
"United States Bankruptcy Code" means the
Bankruptcy Reform Act of 1978, as
amended and as codified in Title 11 of the United States
Code, as amended from
time to time hereafter, or any successor federal bankruptcy
law.
"Unrestricted Subsidiary"
means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted
Subsidiary by the
Board of Directors in the manner provided below and
(ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors
may designate any Restricted
Subsidiary (including any newly acquired or
newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary
unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any
property of, the Company or
any Restricted Subsidiary; provided that (A) any Guarantee by the
Company or any
Restricted Subsidiary of any Indebtedness of the Subsidiary
being so designated
shall be deemed an "Incurrence" of such Indebtedness and an
"Investment" by the
Company or such Restricted Subsidiary (or both,
if applicable) at the time of
such designation; (B) either (I) the Subsidiary
to be so designated has total
assets of $1,000 or less or (II) if such Subsidiary
has assets greater than
$1,000, such designation would be
permitted under Section 4.04 and (C) if
applicable, the Incurrence of Indebtedness and
the Investment referred to in
clause (A) of this proviso would be permitted
under Section 4.03 and Section
4.04. The Board of Directors may designate any
Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that (i) no
Default or Event of Default shall
have occurred and be continuing at the time of or
after giving effect to such
designation and (ii) all Liens and Indebtedness of such
Unrestricted Subsidiary
outstanding immediately after such designation would, if
Incurred at such time,
have been permitted to be Incurred for all purposes of this
Indenture. Any such
designation by the Board of Directors shall
be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution
giving effect to
such designation and an Officers' Certificate
certifying that such designation
complied with the foregoing provisions.
"U.S. Global Notes" has the meaning
provided in Section 2.01.
20
<PAGE>
"U.S. Government
Obligations" means securities that
are (i) direct
obligations of the United States of America for
the payment of which its full
faith and credit is pledged or (ii)
obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of
America the payment of which is unconditionally
guaranteed as a full faith and
credit obligation by the United States of America,
which, in either case, are
not callable or redeemable at the option of the issuer thereof at
any time prior
to the Stated Maturity of the Notes, and shall also include a
depository receipt
issued by a bank or trust company as custodian
with respect to any such U.S.
Government Obligation or a specific payment of interest
on or principal of any
such U.S. Government Obligation held by such
custodian for the account of the
holder of a depository receipt; provided that (except
as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the
holder of such depository receipt from any amount
received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of interest on
or principal of the U.S. Government
Obligation evidenced by such depository
receipt.
"U.S. Physical Notes" has the meaning
provided in Section 2.01.
"Voting Stock" means with respect to any
Person, Capital Stock of any class
or kind ordinarily having the power to vote for
the election of directors,
managers or other voting members of the governing body of such
Person.
"Wholly Owned" means, with
respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such
Subsidiary (other than
any director's qualifying shares or Investments by foreign
nationals mandated by
applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such
Person.
SECTION 1.02.
Incorporation by Reference of Trust
Indenture Act.
-------------------------------------------------------
Whenever this Indenture refers to a
provision of the TIA, the provision is
incorporated by reference in and made a part of this
Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the
Notes;
"indenture security holder" means a
Holder;
"indenture to be qualified" means this
Indenture;
"indenture trustee" or "institutional
trustee" means the Trustee; and
"obligor" on the
indenture securities means the
Company or any other
obligor on the Notes.
All other TIA terms used in
this Indenture that are defined by the TIA,
defined by TIA reference to another
statute or defined by a rule of the
Commission and not otherwise defined herein have the
meanings assigned to them
therein.
SECTION 1.03. Rules
of Construction. Unless the context
otherwise
-----------------------
requires:
21
<PAGE>
(i) a term has the meaning assigned to
it;
(ii) an accounting term not
otherwise defined has the meaning assigned to
it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular
include the plural, and words in the plural
include the singular;
(v) provisions apply to successive events
and transactions;
(vi) "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;
(vii) all ratios and computations based on
GAAP contained in this Indenture
shall be computed in accordance with
the definition of GAAP set forth in
Section 1.01; and
(viii) all references to Sections or
Articles refer to Sections or Articles
of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. The
Notes and the Trustee's certificate of
---------------
authentication shall be substantially in the form
annexed hereto as Exhibit A.
The Notes may have notations, legends or
endorsements required by law, stock
exchange agreements to which the Company is subject or usage.
The Company shall
approve the form of the Notes and any notation, legend
or endorsement on the
Notes. Each Note shall be dated the date of its authentication.
The terms and provisions contained
in the form of the Notes annexed hereto
as Exhibit A shall constitute, and are hereby
expressly made, a part of this
Indenture. 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.
Notes offered and sold in reliance
on Rule 144A shall be issued initially
in the form of one or more
permanent global Notes in definitive,
fully
registered form without interest coupons substantially in the
form set forth in
Exhibit A (the "U.S. Global Notes"), deposited with the
Trustee, as custodian
------------------
for the Depositary, duly executed by the
Company and authenticated by the
Trustee as hereinafter provided. The
aggregate principal amount of the U.S.
Global Notes may from time to time be increased or decreased by
adjustments made
on the records of the Trustee, as custodian for the
Depositary or its nominee,
as hereinafter provided.
Notes offered and sold in offshore
transactions in reliance on Regulation S
shall be issued initially in the form of one or more global Notes
in definitive,
fully registered form without interest
coupons substantially in the form set
forth in Exhibit A (the "Offshore Global
---------------
22
<PAGE>
Notes") deposited with the Trustee, as
custodian for the Depositary, duly
-----
executed by the Company and
authenticated by the Trustee as
hereinafter
provided. The aggregate principal amount of the
Offshore Global Note may from
time to time be increased or decreased by adjustments made on the
records of the
Trustee, as custodian for the
Depositary or its nominee, as
hereinafter
provided.
Notes which are transferred to
Institutional Accredited Investors who are
not QIBs ("Non-Global Purchaser") (other
than in offshore transactions in
reliance on Regulation S) shall be issued in the form of
permanent certificated
Notes in registered form without interest coupons in
substantially the form set
forth in Exhibit A (the "U.S. Physical
Notes"). Upon the transfer of U.S.
---------------------
Physical Notes initially issued to a
Non-Global Purchaser, to a QIB or in
accordance with Regulation S, such U.S. Physical
Notes will, unless the U.S.
Global Notes have previously been
exchanged in whole or in part for U.S.
Physical Notes, be exchanged for an interest in such
U.S. Global Notes. Notes
issued pursuant to Section 2.07 in exchange for
interests in the U.S. Global
Notes shall be in the form of U.S. Physical
Notes. Notes issued pursuant to
Section 2.07 in exchange for interests in Offshore Global
Notes shall be in the
form of permanent certificated Notes in registered
form substantially in the
form set forth in Exhibit A (the "Offshore Physical Notes").
-----------------------
The Offshore
Physical Notes and U.S. Physical
Notes are sometimes
collectively referred to herein as the "Physical
Notes". The U.S. Global Notes
---------------
and the Offshore Global Notes are sometimes
collectively referred to herein as
the "Global Notes".
------------
The definitive Notes shall be typed,
printed, lithographed or engraved or
produced by any combination of these
methods or may be produced in any other
manner permitted by the rules of any securities exchange on
which the Notes may
be listed, all as determined by the Officers executing such
Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. Restrictive Legends. Unless
and until a Note is exchanged for
-------------------
a Registered Note in connection with
an effective Registration Statement
pursuant to the Registration Rights Agreement, (i) the U.S. Global
Note and each
U.S. Physical Note shall bear the legend, set
forth below on the face thereof
and (ii) the Offshore Physical Notes and the Offshore Global Note
shall bear the
legend set forth below on the face thereof
until at least 41 days (or a date
otherwise in compliance with Regulation S) after the Closing Date
and receipt by
the Company and the Trustee of a
certificate substantially in the form of
Exhibit B hereto.
THE NOTES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION 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 ("RULE 144A")), OR (B) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION,
(2) AGREES TO
23
<PAGE>
OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
SUCH NOTE PRIOR TO THE DATE WHICH
IS ONE YEAR AFTER
THE DATE OF ORIGINAL ISSUE HEREOF
ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE
ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A TO A PERSON IT
REASONABLY
BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS
OWN
ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM
NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) OUTSIDE THE UNITED
STATES PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS IN AN OFFSHORE
TRANSACTION PURSUANT TO REGULATION S UNDER
THE
SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSE (E) TO
REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM.
Each Global Note, whether or
not a Registered Note, shall also bear the
following legend on the face thereof:
UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE
DEPOSITORY TRUST COMPANY TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE
OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF
CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
24
<PAGE>
SECTION 2.03. Execution,
Authentication and Denominations. The Notes shall
--------------------------------------------
be executed by two Officers of the Company, at least one of which
shall occupy a
position listed in clause (i) of the definition of Officer herein.
The signature
of these Officers on the Notes may be by facsimile or
manual signature in the
name and on behalf of the Company.
If an Officer whose signature
is on a Note no longer holds that office at
the time the Trustee or authenticating agent
authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be
valid until the Trustee or
authenticating agent
manually or by facsimile signs the certificate of
authentication on the Note.
The signature shall be conclusive evidence that the Note has
been authenticated
under this Indenture.
At any time and from time to time after
the execution of this Indenture,
the Trustee or an authenticating agent shall upon
receipt of a Company Order
authenticate for original issue Notes
in the aggregate principal amount
specified in such Company Order; provided that the Trustee
shall be entitled to
receive an Officers' Certificate and an Opinion
of Counsel of the Company in
connection with such authentication of Notes. Such
Company Order shall specify
the amount of Notes to be authenticated and the date on which the
original issue
of Notes is to be authenticated and in case of an issuance of
Notes pursuant to
Section 2.15, shall certify that such issuance is
in compliance with Article
Four. The Opinion of Counsel shall be to the effect that:
(a) that the form and terms of
such Notes have been established by
or
pursuant to a Board Resolution
or an indenture supplemental hereto in
conformity with the provisions of this Indenture;
(b) that such supplemental
indenture, if any, when executed and delivered
by the Company and the
Trustee, will constitute a valid
and binding
obligation of the Company;
(c) that such Notes, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to
any conditions specified
in such Opinion of Counsel, will constitute
valid and binding obligations of
the Company in accordance with
their terms and will be entitled to the
benefits of this Indenture, subject to
bankruptcy, insolvency, fraudulent
transfer, reorganization,
moratorium and similar
laws of general
applicability relating to or
affecting creditors' rights and to general
equity principles; and
(d) that the Company has
been duly incorporated in, and is a
validly
existing corporation in good
standing under the laws of, the State
of
Delaware.
The Trustee may appoint an
authenticating agent to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee
may do so. Each
reference in this Indenture to
authentication by the Trustee
includes
authentication by such authenticating agent. An
authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of
the Company.
25
<PAGE>
The Notes shall be issuable only
in registered form without coupons and
only in denominations of $2,000 in principal amount and any
integral multiple of
$1,000 in excess thereof.
SECTION 2.04. Registrar and
Paying Agent. The Company shall maintain an
---------------------------
office or agency where Notes may be presented for
registration of transfer or
for exchange (the "Registrar"), an office or agency for the
Paying 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,
which shall be in the Borough of
Manhattan, The City of New York. The Company shall cause the
Registrar to keep a
register of the Notes and of their
transfer and exchange (the "Security
--------
Register"). The Company may have one or
more co-Registrars and one or more
--------
additional Paying Agents.
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
give prompt written
notice to the Trustee of the name and address of any
such agent and any change
in the address of such agent. If the
Company fails to maintain a Registrar,
Paying Agent and/or agent for service of notices and demands,
the Trustee shall
act as such Registrar, Paying Agent
and/or agent for service of notices and
demands. The Company may remove any agent upon written notice
to such agent and
the Trustee; provided that no such removal shall become
effective until (i) the
acceptance of an appointment by a successor agent to such
agent as evidenced by
an appropriate agency agreement entered into by the
Company and such successor
agent and delivered to the Trustee or (ii) notification to
the Trustee that the
Trustee shall serve as such agent until the appointment of a
successor agent in
accordance with clause (i) of this proviso. The
Company, any Subsidiary of the
Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or
co-Registrar, and/or agent for service of notice and demands.
The Company initially appoints
the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice
and demands. If, at any
time, the Trustee is not the Registrar, the
Registrar shall make available to
the Trustee on or before each Interest Payment Date and
at such other times as
the Trustee may reasonably request, the names and
addresses of the Holders as
they appear in the Security Register.
SECTION 2.05. Paying
Agent to Hold Money in Trust. Not later than 12:00
------------------------------------
noon, New York City time, on each due date of the
principal, premium, if any,
and interest on any Notes, the Company shall deposit with the
Paying Agent money
in immediately available funds sufficient to pay such
principal, premium, if
any, and interest so becoming due. The Company shall
require each Paying Agent
other than the Trustee to agree in writing that such Paying
Agent shall hold in
trust for the benefit of the Holders or the Trustee all money held
by the Paying
Agent for the payment of principal of,
premium, if any, and interest on the
Notes (whether such money has been
paid to it by the Company or any other
obligor on the Notes), and such Paying Agent shall
promptly notify the Trustee
of any default by the Company (or any other obligor on the
Notes) in making any
such payment. The Company at any time may
require a Paying Agent to pay all
money held by it to the Trustee and account for any
funds disbursed, and the
Trustee may at any time during the continuance of
any payment default, upon
written request to a Paying Agent, require such
Paying Agent to pay all money
held by it to the Trustee
26
<PAGE>
and to account for any funds disbursed. Upon doing so,
the Paying Agent shall
have no further liability for the money so paid
over to the Trustee. If the
Company or any Subsidiary of the Company or any Affiliate of any of
them acts as
Paying Agent, it will, on or before each due date of any
principal of, premium,
if any, or interest on the Notes, segregate and hold in
a separate trust fund
for the benefit of the Holders a sum of money sufficient to
pay such principal,
premium, if any, or interest so becoming due
until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this
Indenture, and
will promptly notify the Trustee of its action or failure to
act.
SECTION 2.06. Transfer
and Exchange. The Notes are issuable
only in
-----------------------
registered form. A Holder may transfer a Note by
written application to the
Registrar stating the name of the proposed transferee
and otherwise complying
with the terms of this Indenture. No such transfer shall be
effected until, and
such transferee shall succeed to the
rights of a Holder only upon, final
acceptance and registration of the transfer by
the Registrar in the Security
Register. Prior to the registration of any
transfer by a Holder as provided
herein, the Company, the Trustee, and any agent of the
Company shall treat the
person in whose name the Note is
registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and
neither the Company, the
Trustee, nor any such agent shall be
affected by notice to the contrary.
Furthermore, any Holder of a U.S. Global Note shall, by
acceptance of such U.S.
Global Note, agree that transfers of beneficial
interests in such U.S. Global
Note may be effected only through a book entry system
maintained by the Holder
of such U.S. Global Note (or its agent) and
that ownership of a beneficial
interest in the Note shall be required to be
reflected in a book entry. When
Notes are presented to the Registrar or
a co-Registrar with a request to
register the transfer or to exchange them for an equal principal
amount of Notes
of other authorized denominations (including an exchange of Notes
for Registered
Notes), the Registrar shall register
the transfer or make the exchange as
requested if its requirements for such transactions are
met; provided that no
exchanges of Notes for Registered
Notes shall occur until a Registration
Statement shall have been declared effective by
the Commission and that any
Notes that are exchanged for Registered Notes shall be cancelled by
the Trustee.
To permit registrations of transfers and
exchanges, the Company shall execute
and the Trustee shall authenticate Notes at the Registrar's
request. No service
charge shall be made for any registration of transfer or
exchange or redemption
of the Notes, but the Company may require payment of a
sum sufficient to cover
any transfer tax or similar governmental charge payable in
connection therewith
(other than any such transfer taxes or other similar governmental
charge payable
upon exchanges pursuant to Section 2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to
issue, register the transfer of
or exchange any Note during a period
beginning at the opening of business 15
days before the day of the mailing of a notice of redemption
of Notes selected
for redemption under Section 3.03 and ending at the close of
business on the day
of such mailing, or (ii) to register the
transfer of or exchange any Note so
selected for redemption in whole or in part, except the
unredeemed portion of
any Note being redeemed in part.
SECTION 2.07. Book-Entry
Provisions for Global Notes. (a) The U.S. Global
---------------------------------------
Notes and Offshore Global Notes initially shall (i) be registered
in the name of
the Depositary for such Global Notes or the nominee of such
Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii)
bear legends
as set forth in Section 2.02.
27
<PAGE>
Members of, or participants in, the
Depositary ("Agent Members") shall have
-------------
no rights under this Indenture with respect
to any Global Note held on their
behalf by the Depositary, or the Trustee as its
custodian, or under any Global
Note, and the Depositary may be treated by
the Company, the Trustee and any
agent of the Company or the Trustee as the
absolute owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall
prevent the Company, the Trustee or any agent of
the Company or the Trustee,
from giving effect to any written certification, proxy
or other authorization
furnished by the Depositary or impair, as between the
Depositary and its Agent
Members, the operation of customary
practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of a Global Note shall be
limited to transfers of such Global
Note in whole, but not in part, to the
Depositary, its successors or their
respective nominees. Interests of
beneficial owners in a Global Note may be
transferred in accordance with the rules and
procedures of the Depositary and
the provisions of Section 2.08. In addition, U.S.
Physical Notes and Offshore
Physical Notes shall be transferred to all
beneficial owners in exchange for
their beneficial interests in the U.S.
Global Notes or the Offshore Global
Notes, respectively, if (i) the Depositary
notifies the Company that it is
unwilling or unable to continue as Depositary for the
U.S. Global Notes or the
Offshore Global Notes, as the case may be, and a
successor depositary is not
appointed by the Company within 90 days of
such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has
received a request
to the foregoing effect from the Depositary.
(c) Any beneficial interest in one
of the Global Notes that is transferred
to a person who takes delivery in the form of an
interest in the other Global
Note will, upon transfer, cease to be an interest in such Global
Note and become
an interest in the other Global Note and,
accordingly, will thereafter be
subject to all transfer restrictions, if any, and other procedures
applicable to
beneficial interests in such other Global Note for as long as it
remains such an
interest.
(d) In connection with any
transfer pursuant to paragraph (b) of
this
Section of a portion of the beneficial interests in a Global
Note to beneficial
owners who are required to hold U.S. Physical Notes, the Registrar
shall reflect
on its books and records the date and a decrease in the principal
amount of such
Global Note in an amount equal to the
principal amount of the beneficial
interest in such Global Note to be transferred, and the
Company shall execute,
and the Trustee shall authenticate and deliver,
one or more Physical Notes of
like tenor and amount.
(e) In connection with
the transfer of the entire U.S. Global Notes
or
Offshore Global Notes to beneficial owners
pursuant to paragraph (b) of this
Section, the U.S. Global Notes or Offshore Global
Notes, as the case may be,
shall be deemed to be surrendered to the
Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and
deliver, to each
beneficial owner identified by the Depositary in
exchange for its beneficial
interest in the U.S. Global Notes or Offshore Global Notes,
as the case may be,
an equal aggregate principal amount of U.S. Physical Notes or
Offshore Physical
Notes, as the case may be, of authorized denominations.
28
<PAGE>
(f) Any U.S. Physical
Note delivered in exchange for an interest in the
U.S. Global Notes pursuant to paragraph (b) or (d) of this Section
shall, except
as otherwise provided by paragraph
(f) of Section 2.08, bear the legend
regarding transfer restrictions applicable to the U.S.
Physical Note set forth
in Section 2.02.
(g) Any Offshore Physical Note delivered
in exchange for an interest in the
Offshore Global Notes pursuant to paragraph (b) of this Section
shall, except as
otherwise provided by paragraph (f) of Section 2.08, bear the
legend regarding
transfer restrictions applicable to the
Offshore Physical Note set forth in
Section 2.02.
(h) The registered holder of a
Global Note may grant proxies and otherwise
authorize any person, including Agent
Members and persons that may hold
interests through Agent Members, to take any action
which a Holder is entitled
to take under this Indenture or the Notes.
(i) QIBs that are beneficial owners
of interests in a U.S. Global Note may
receive Physical Notes (which shall
bear the Private Placement Legend if
required by Section 2.02) in accordance with the procedures
of the Depositary.
In connection with the execution, authentication and
delivery of such Physical
Notes, the Registrar shall reflect on its books
and records a decrease in the
principal amount of the relevant U.S. Global Note equal to
the principal amount
of such Physical Notes and the Company
shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes
having an equal aggregate
principal amount.
SECTION 2.08. Special
Transfer Provisions. Unless and until a Note
is
-----------------------------
exchanged for an Registered Note in connection with an
effective Registration
Statement pursuant to the
Registration Rights Agreement,
the following
provisions shall apply:
(a) Transfers to Non-QIB
Institutional Accredited Investors. The following
--------------------------------------------------------
provisions shall apply with respect to the registration of any
proposed transfer
of a Note to any Institutional Accredited Investor which is not a
QIB (excluding
Non-U.S. Persons):
(i) The Registrar shall register the
transfer of any Note, whether or not
such Note bears the Private Placement Legend, if
(x) the requested transfer
is after the time period referred to in Rule 144
under the Securities Act as
in effect with respect to such transfer or (y)
the proposed transferee has
delivered to the Registrar (A) a
certificate substantially in the form of
Exhibit C hereto and (B) if the aggregate principal
amount of the Notes being
transferred is less than $100,000 at the time of such
transfer, an opinion of
counsel acceptable to the Company that
such transfer is in compliance with
the Securities Act.
(ii) If the proposed
transferor is an Agent Member holding a
beneficial
interest in the U.S. Global Note, upon
receipt by the Registrar of (x) the
documents, if any, required by paragraph
(i) and (y) instructions given in
accordance with the
Depositary's and the Registrar's
procedures, the
Registrar shall reflect on its books and
records the date and a decrease in
the principal amount of the
U.S. Global Note in an amount equal to
the
principal amount of the beneficial interest in the
U.S. Global Note to
29
<PAGE>
be transferred, and the Company
shall execute, and the Trustee shall
authenticate and deliver, one or more U.S.
Physical Notes of like tenor and
amount.
(b) Transfers to QIBs. The following
provisions shall apply with respect to
the registration of any proposed transfer of a U.S. Physical Note
or an interest
in the U.S. Global Note to a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred
consists of (x) U.S. Physical Notes, the
Registrar shall register the
transfer if such transfer is being made by a
proposed transferor who has checked the box
provided for on the form of Note
stating, or has otherwise advised the
Company and the Registrar in writing,
that the sale has been made in compliance with the
provisions of Rule 144A to
a transferee who has signed the
certification provided for on the form of
Note stating, or has otherwise
advised the Company and the Registrar in
writing, that it is purchasing the
Note for its own account or an account
with respect to which it exercises sole investment
discretion and that it and
any such account is a QIB within the meaning of Rule
144A, and is aware that
the sale to it is being made in reliance on Rule 144A
and acknowledges that
it has received such information
regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request
such information and
that it is aware that
the transferor is relying upon
its foregoing
representations in order to claim the exemption from
registration provided by
Rule 144A or (y) an interest in the U.S.
Global Note, the transfer of such
interest may be effected only through the book entry
system maintained by the
Depositary.
(ii) If the proposed
transferee is an Agent Member, and the Note to
be
transferred consists of U.S. Physical Notes, upon
receipt by the Registrar of
the documents referred to in clause (i) and
instructions given in accordance
with the Depositary's and the
Registrar's procedures, the Registrar shall
reflect on its books and records the date and
an increase in the principal
amount of the U.S. Global Note in an amount equal to
the principal amount of
the U.S. Physical Notes to be transferred,
and the Trustee shall cancel the
U.S. Physical Note so transferred.
(c) Transfers of Interests in the Offshore
Global Note or Offshore Physical
-----------------------------------------------------------------------
Notes. The following provisions shall apply
with respect to any transfer of
-----
interests in the Offshore Global Note
or Offshore Physical Notes to U.S.
Persons:
(i) prior to the removal of the
Private Placement Legend from the Offshore
Global Note or Offshore
Physical Notes pursuant to Section
2.02, the
Registrar shall refuse to register s
