<PAGE>
EXHIBIT 4.1
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AGCO CORPORATION
as Issuer,
and
SUNTRUST BANK,
as Trustee
---------------------------------------------------
INDENTURE
Dated as of
April 23, 2004
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6-7/8% SENIOR SUBORDINATED NOTES DUE 2014
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CROSS-REFERENCE TABLE
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TIA Sections
Indenture Sections
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Section
310(a)(1)...............................................
7.09
(a)(2).................................................
7.09
(a)(3).................................................
N.A.
(a)(4).................................................
N.A.
(a)(5).................................................
7.09
(b)....................................................
7.08, 7.10
(c)....................................................
N.A.
Section
311(a)..................................................
7.13
(b)....................................................
7.13
(c)....................................................
N.A.
Section
312(a)..................................................
5.01, 5.02(a)
(b)....................................................
5.02(b)
(c)....................................................
5.02(c)
Section
313(a)..................................................
5.03(a)
(b)(1).................................................
5.03(a)
(b)(2).................................................
5.03(a)
(c)....................................................
5.03(a)
(d)....................................................
5.03(c)
Section
314(a)..................................................
5.04
(b)....................................................
5.04
(c)(1).................................................
15.05
(c)(2).................................................
15.05
(c)(3).................................................
N.A.
(d)....................................................
N.A.
(e)....................................................
15.05
Section
315(a)..................................................
7.01
(b)....................................................
5.03, 7.02
(c)....................................................
7.01
(d)....................................................
7.01
(e)....................................................
6.08
Section 316(a)(last
sentence)...................................
6.07
(a)(1)(A)..............................................
6.07
(a)(1)(B)..............................................
6.07
(a)(2).................................................
N.A.
(b)....................................................
6.04
(c)....................................................
8.01
Section
317(a)(1)...............................................
6.02
(a)(2).................................................
6.02
(b)....................................................
4.16
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Section
318(a)..................................................
15.07
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N.A. means not applicable.
Note: The Cross-Reference Table shall not
for any purpose be deemed to be a part
of the
Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions
Section 1.01.
Definitions........................................................................................
1
ARTICLE II
Issue, Description, Execution, Registration and Exchange of
Notes
Section 2.01. Designation, Amount and Issue
of
Notes.............................................................
27
Section 2.02. Form of
Notes......................................................................................
27
Section 2.03. Date and Denomination of
Notes; Payments of
Interest...............................................
28
Section 2.04. Execution and Authentication
of
Notes..............................................................
29
Section 2.05. Exchange and Registration of
Transfer of Notes; Restrictions on
Transfer........................... 30
Section 2.06. Mutilated, Destroyed, Lost or
Stolen
Notes.........................................................
32
Section 2.07. Temporary
Notes....................................................................................
33
Section 2.08. Cancellation of
Notes..............................................................................
34
Section 2.09. CUSIP
Numbers......................................................................................
34
ARTICLE III
Redemption of Notes
Section 3.01. Redemption of Notes at the
Option of the
Company...................................................
34
Section 3.02. Redemption by the Company for
Tax
Purposes.........................................................
35
Section 3.03. Notice of Optional
Redemption; Selection of
Notes..................................................
36
Section 3.04. Payment of Notes Called for
Redemption by the
Company.............................................. 37
ARTICLE IV
Particular Covenants of the Company
Section 4.01. Payment of Principal, Premium
and
Interest.........................................................
38
Section 4.02. Obligation to Pay Additional
Amounts...............................................................
38
Section 4.03. Limitation on
Indebtedness.........................................................................
41
Section 4.04. Limitation on Senior
Subordinated
Indebtedness.....................................................
44
Section 4.05. Limitation on Restricted
Payments..................................................................
44
Section 4.06. Limitation on Dividend and
Other Payment Restrictions Affecting Restricted
Subsidiaries............ 47
Section 4.07. Limitation on the Issuance
and Sale of Capital Stock of Restricted
Subsidiaries.................... 49
Section 4.08. Limitation on Issuances of
Guarantees by Restricted
Subsidiaries................................... 50
Section 4.09. Limitation on Transactions
with Stockholders and
Affiliates........................................ 51
Section 4.10. Limitation on
Liens................................................................................
52
Section 4.11. Limitation on Asset
Sales..........................................................................
52
Section 4.12. Limitation on Sale/Leaseback
Transactions..........................................................
53
Section 4.13. Repurchase Upon Change of
Control..................................................................
54
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Section 4.14. Maintenance of Office or
Agency....................................................................
54
Section 4.15. Appointments to Fill
Vacancies in Trustee's
Office.................................................
54
Section 4.16. Provisions as to Paying
Agent......................................................................
55
Section 4.17.
Existence..........................................................................................
56
Section 4.18. Maintenance of
Properties..........................................................................
56
Section 4.19. Payment of Taxes and Other
Claims..................................................................
56
Section 4.20. Stay, Extension and Usury
Laws.....................................................................
56
Section 4.21. Compliance Certificate;
Notice of
Default..........................................................
57
Section 4.22. Limitation on Applicability
of Certain
Covenants...................................................
57
ARTICLE V
Noteholders'
Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee
Names and Addresses of
Noteholders...................................... 57
Section 5.02. Preservation and Disclosure
of
Lists...............................................................
57
Section 5.03. Reports by
Trustee.................................................................................
58
Section 5.04. Reports by
Company.................................................................................
58
ARTICLE VI
Events of Default and Remedies
Section 6.01. Events of Default;
Acceleration....................................................................
58
Section 6.02. Payments of Notes on Default;
Suit
Therefor........................................................
61
Section 6.03. Application of Monies
Collected by
Trustee.........................................................
62
Section 6.04. Proceedings by
Noteholder..........................................................................
63
Section 6.05. Proceedings by
Trustee.............................................................................
64
Section 6.06. Remedies Cumulative and
Continuing.................................................................
64
Section 6.07. Direction of Proceedings and
Waiver of Defaults by Majority of
Noteholders......................... 64
Section 6.08. Undertaking to Pay
Costs...........................................................................
65
ARTICLE VII
The Trustee
Section 7.01. Certain Duties and
Responsibilities................................................................
65
Section 7.02. Notice of
Defaults.................................................................................
66
Section 7.03. Certain Rights of the
Trustee......................................................................
66
Section 7.04. Not Responsible for
Statements or Issuance of
Notes................................................ 67
Section 7.05. May Hold
Notes.....................................................................................
67
Section 7.06. Monies to be Held in
Trust.........................................................................
68
Section 7.07. Compensation and
Reimbursement.....................................................................
68
Section 7.08. Disqualification; Conflicting
Interests............................................................
68
Section 7.09. Corporate Trustee Required;
Eligibility............................................................
69
Section 7.10. Resignation and Removal of
Trustee; Appointment of
Successor....................................... 69
Section 7.11. Acceptance of Appointment of
Successor.............................................................
70
Section 7.12. Merger, Conversion,
Consolidation or Succession to
Business........................................ 71
Section 7.13. Preferential Collection of
Claims Against
Company..................................................
71
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ARTICLE VIII
The Noteholders
Section 8.01. Action by
Noteholders..............................................................................
71
Section 8.02. Proof of Execution by
Noteholders..................................................................
71
Section 8.03. Who Are Deemed Absolute
Owners.....................................................................
72
Section 8.04. Company-Owned Notes
Disregarded....................................................................
72
Section 8.05. Revocation of Consents,
Future Holders
Bound.......................................................
72
ARTICLE IX
Meetings of Noteholders
Section 9.01. Purpose of
Meetings................................................................................
73
Section 9.02. Call of Meetings by
Trustee........................................................................
73
Section 9.03. Call of Meetings by Company
or
Noteholders.........................................................
73
Section 9.04. Qualifications for
Voting..........................................................................
74
Section 9.05.
Regulations........................................................................................
74
Section 9.06.
Voting.............................................................................................
74
Section 9.07. No Delay of Rights by
Meeting......................................................................
75
ARTICLE X
Supplemental Indentures
Section 10.01. Supplemental Indentures
Without Consent of
Noteholders............................................
75
Section 10.02. Supplemental Indenture with
Consent of
Noteholders................................................
76
Section 10.03. Effect of Supplemental
Indenture..................................................................
77
Section 10.04. Notation on
Notes.................................................................................
77
Section 10.05. Evidence of Compliance of
Supplemental Indenture to Be Furnished to
Trustee....................... 78
ARTICLE XI
Merger, Consolidation, Etc.
Section 11.01. Mergers, Consolidations and
Certain Transfers, Leases and Acquisitions of
Assets.................. 78
Section 11.02. Successor to Be
Substituted.......................................................................
79
Section 11.03. Opinion of Counsel to Be
Given
Trustee............................................................
79
ARTICLE XII
Satisfaction and Discharge of Indenture
Section 12.01. Termination of the Company's
Obligations..........................................................
79
Section 12.02. Defeasance and Discharge of
Indenture.............................................................
80
Section 12.03. Deposited Monies to Be Held
in Trust by
Trustee...................................................
82
Section 12.04. Defeasance of Certain
Obligations.................................................................
82
Section 12.05. Paying Agent to Repay Monies
Held.................................................................
84
Section 12.06. Return of Unclaimed
Monies........................................................................
84
Section 12.07.
Reinstatement.....................................................................................
84
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ARTICLE XIII
Immunity of Incorporators, Stockholders, Officers and Directors
Section 13.01. Indenture and Notes Solely
Corporate
Obligations..................................................
84
ARTICLE XIV
Subordination of Notes
Section 14.01. Notes Subordinated to Senior
Indebtedness.........................................................
85
Section 14.02. No Payment on Notes in
Certain
Circumstances......................................................
85
Section 14.03. Payment over Proceeds upon
Dissolution,
Etc.......................................................
86
Section 14.04.
Subrogation.......................................................................................
88
Section 14.05. Obligations of Company
Unconditional..............................................................
88
Section 14.06. Notice to
Trustee.................................................................................
89
Section 14.07. Reliance on Judicial Order
or Certificate of Liquidating
Agent.................................... 90
Section 14.08. Trustee's Relation to Senior
Indebtedness.........................................................
90
Section 14.09. Subordination Rights Not
Impaired by Acts or Omissions of the Company or
Holders of Senior
Indebtedness....................................................................
90
Section 14.10. Holders Authorize Trustee to
Effectuate Subordination of
Notes.................................... 90
Section 14.11. Not to Prevent Events of
Default..................................................................
91
Section 14.12. Trustee's Compensation Not
Prejudiced.............................................................
91
Section 14.13. No Waiver of Subordination
Provisions.............................................................
91
Section 14.14. Payments May Be Paid Prior
to
Dissolution.........................................................
91
Section 14.15. Trust Moneys Not
Subordinated.....................................................................
91
ARTICLE XV
Miscellaneous Provisions
Section 15.01. Provisions Binding on
Company's
Successors........................................................
92
Section 15.02. Official Acts by Successor
Corporation............................................................
92
Section 15.03. Addresses for Notices,
Etc........................................................................
92
Section 15.04. Governing
Law.....................................................................................
92
Section 15.05. Evidence of Compliance with
Conditions Precedent, Certificates to
Trustee......................... 92
Section 15.06. Legal
Holidays....................................................................................
93
Section 15.07. Trust Indenture
Act...............................................................................
93
Section 15.08. No Security Interest
Created......................................................................
93
Section 15.09. Benefits of
Indenture.............................................................................
93
Section 15.10. Table of Contents, Headings,
Etc..................................................................
93
Section 15.11. Authenticating
Agent..............................................................................
94
Section 15.12. Execution in
Counterparts.........................................................................
94
Section 15.13.
Severability......................................................................................
94
Exhibit A
Form of
Note..................................................................................
A-1
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<PAGE>
INDENTURE
INDENTURE dated as of April 23, 2004 between AGCO Corporation,
a Delaware corporation (hereinafter called
the "COMPANY"), and SunTrust Bank, a
Georgia banking corporation, as trustee
hereunder (hereinafter called the
"TRUSTEE").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue of its 6-7/8%
Senior Subordinated Notes due 2014
(hereinafter called the "NOTES"), in an
aggregate principal amount not to exceed
(euro)200 million on the date hereof, and,
to provide the terms and conditions
upon which the Notes are to be
authenticated, issued and delivered, the Company
has duly authorized the execution and
delivery of this Indenture;
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated
and delivered by the Trustee or a duly
authorized authenticating agent, as in this
Indenture provided, the valid,
binding and legal obligations of the
Company, and to constitute this Indenture a
valid agreement according to its terms,
have been done and performed, and the
execution of this Indenture and the issue
hereunder of the Notes have in all
respects been duly authorized; and
WHEREAS, this Indenture is subject to, and shall be governed
by, the provisions of the Trust Indenture
Act of 1939, as amended, that are
required to be part of and to govern
indentures qualified under the Trust
Indenture Act of 1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be,
authenticated, issued and delivered, and in
consideration of the premises and of the
purchase and acceptance of the Notes by
the holders thereof, the Company covenants
and agrees with the Trustee for the
equal and proportionate benefit of the
respective holders from time to time of
the Notes (except as otherwise provided
below), as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section
1.01 (except as herein otherwise expressly
provided or unless the context
otherwise requires) for all purposes of
this Indenture and of any indenture
supplemental hereto shall have the
respective meanings specified in this Section
1.01. All other terms used in this
Indenture that are defined in the Trust
Indenture Act or which are by reference
therein defined in the Securities Act
(except as herein otherwise expressly
provided or unless the context otherwise
requires) shall have the meanings assigned
to such terms in the Trust Indenture
Act and in the Securities Act as in force
at the date of the execution of this
Indenture. The words "herein", "hereof",
"hereunder" and words of similar import
refer to this Indenture as a whole and not
to any particular Article, Section or
other Subdivision. The terms defined in
this Article include the plural as well
as the singular.
<PAGE>
"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 the Company or 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.
"ADDITIONAL NOTES" has the meaning specified in Section 2.01.
"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 of any Person (other than net income
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 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 clause (C) of
paragraph (a) of Section 4.05 (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 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) all
compensation expense resulting from the
forgiveness of the exercise price of employee stock options and
compensation expense resulting from the grant of employee stock
options
having an exercise price below the fair market value thereof;
(vi)
except for purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (C) of
paragraph (a) of Section 4.05, 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;
and
(vii) all
extraordinary gains and extraordinary losses.
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"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
(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, trade-marks, 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,
prepared
in conformity with GAAP and filed pursuant to Section 5.04.
"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.
"APPLICABLE TREASURY RATE", for any redemption date, 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) that has
become publicly available at least two
Business Days prior to the Make-Whole
Redemption Date of such Note (or, if such
Statistical Release is no longer published,
any publicly available source of
similar market data)) most nearly equal to
the period from the Make-Whole
Redemption Date to April 15, 2009;
provided, however, that if the period from
the Make-Whole Redemption Date to April 15,
2009 is not equal to the constant
maturity of a United States Treasury
security for which a weekly average yield
is given, the Applicable 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 period from the Make-Whole
Redemption Date to April 15, 2009 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.
"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 businesses of the Company and its Restricted Subsidiaries on
the
date of such investment; or
-3-
<PAGE>
(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 or line of business of such
Person;
provided that the property and assets acquired are related,
ancillary
or complementary to 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 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/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 (other than the Capital Stock or
assets
of an Unrestricted Subsidiary) outside the ordinary course of
business
of the Company or such Restricted Subsidiary and, in each case,
that is
not governed by the provisions of Article XI;
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, provided that the consideration received
would
satisfy clause (b)(i)(B) of Section 4.11;
(C) a
Permitted Investment or a Restricted Payment that
is permitted by Section 4.05;
(D) a single
transaction or a series of related
transactions described in clauses (i), (ii) or (iii) above (a)
that
have a Fair Market Value of less than $5 million or (b) for net
proceeds of less than $5 million; or
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<PAGE>
(E) sales in
connection with a Tax Abatement Transaction
permitted by this Indenture.
"ATTRIBUTABLE DEBT", in respect of a Sale/Leaseback Transaction
means,
as at the time of determination, the
present value (discounted at the interest
rate borne by the Notes, compounded
annually) of the total obligations of the
lessee for rental payments during the
remaining term of the lease included in
such Sale/Leaseback Transaction (including
any period for which such lease has
been extended).
"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.
"AGENT MEMBERS" has the meaning specified in Section 2.05(b).
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
a
committee of such Board of Directors duly
authorized to act for it hereunder.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and
Friday which is not a day on which the
banking institutions in The City of New
York or the city in which the Corporate
Trust Office is located are authorized
or obligated by law or executive order to
close or be closed.
"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 now outstanding or
issued after the Closing Date, 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 such Person as
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 any
Capitalized Lease.
"CHANGE OF CONTROL" means such time as:
(i) a "person"
or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act) becomes the ultimate
"beneficial owner" (as defined in Rule 13d-3
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<PAGE>
under the Exchange Act) of Voting Stock representing more than 35%
of
the total
voting power of the total Voting Stock of the Company on a
fully diluted basis; or
(ii)
individuals who on the Closing Date constitute the
Board of Directors (together with any new directors whose election
by
the Board of Directors or whose nomination 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.
"CLOSING DATE"
means the date on which the Notes are originally issued
under this Indenture.
"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 Indenture such
Commission is not existing and performing
the duties now assigned to it under the
Trust Indenture Act, then the body
performing such duties at such time.
"COMMON STOCK" means any stock of any class of the Company which
has no
preference in respect of dividends or of
amounts payable in the event of any
voluntary or involuntary liquidation,
dissolution or winding up of the Company
and which is not subject to redemption by
the Company.
"COMPANY" means the corporation named as the "Company" in the
first
paragraph of this Indenture, and, subject
to the provisions of Article XI, shall
include its successors and assigns.
"CONSOLIDATED CASH FLOW" means, for any period, the sum of the
amounts
for such period of
(i) Adjusted
Consolidated Net Income,
(ii)
Consolidated Interest Expense, to the extent such
amount was deducted in calculating Adjusted Consolidated Net
Income,
(iii) income taxes, to the extent
such amount was deducted
in calculating Adjusted Consolidated Net Income (other than
income
taxes (either positive or negative) attributable to extraordinary
and
non-recurring gains or losses or sales of assets),
(iv)
depreciation expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income,
(v)
amortization expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income, and
(vi)
all other non-cash items reducing Adjusted
Consolidated Net Income (other than items that will require
cash
payments and for which an accrual or reserve is,
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<PAGE>
or is required by GAAP to be, made, and other than those non-cash
items
added back in calculating Adjusted Consolidated Net Income pursuant
to
the definition thereof), 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 Cash Flow shall be
reduced (to the extent not otherwise
reduced in accordance with GAAP) by an
amount equal to
(A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by
(B) 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 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; all
commissions, discounts and other fees and
charges owed with respect to letters of
credit and bankers' acceptance
financing; the net costs associated with
Interest Rate Agreements; and
Indebtedness that is Guaranteed or secured
by the Company or any of its
Restricted Subsidiaries) and 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,
(i) 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); and
(ii) any premiums, fees and expenses (and any amortization
thereof) payable in connection with the offering of the Notes, all
as
determined on a consolidated basis (without taking into account
Unrestricted Subsidiaries) in conformity with GAAP.
"CONVERTIBLE NOTE INDENTURE" means the Indenture dated December
23,
2003 by and between the Company and
SunTrust Bank, as trustee.
"CONVERTIBLE NOTES" shall mean those certain 1 3/4% Convertible
Senior
Subordinated Notes due 2033 issued under
the Convertible Note Indenture.
"CORPORATE TRUST OFFICE" means the designated office of the
Trustee, in
the Borough of Manhattan, The City of New
York, which office is at the date
hereof located at c/o
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Computershare Trust Company of New York, 88
Pine Street, Wall Street Plaza, 19th
Floor, New York, New York 10005.
"CREDIT FACILITY" means one or more debt facilities, commercial
paper
facilities, indentures or other agreements,
in each case with banks or other
institutional lenders or trustees or
investors, providing for revolving credit
loans, term loans, notes, and/or letters of
credit, together with any related
documents thereto (including, without
limitation, any guarantees and security
documents), in each case as such facility
or facilities may be amended
(including any amendment and restatement
thereof), supplemented or otherwise
modified from time to time, including any
agreements extending the maturity of,
refinancing, replacing (whether or not
contemporaneously) or otherwise
restructuring all or any portion of the
Indebtedness under any such agreement or
any successor or replacement agreement and
whether by the same or any other
agent, lender or group of lenders or
investors and whether such refinancing is
under one or more debt facilities.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap
agreement or other similar agreement or
arrangement designed to protect the
Company or any of its Subsidiaries against
fluctuations in currency values to or
under which the Company or any of its
Subsidiaries is a party or a beneficiary
on the date hereof or thereafter.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Notes
in global form, or any successor entity
thereto.
"DEFAULT" means any event that is, or after notice or passage of
time,
or both, would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.03.
"DEPOSITARY" means the clearing agency registered under the
Exchange
Act that is designated to act as the
Depositary for the Global Notes. DTC shall
be the initial Depositary, until a
successor shall have been appointed and
become such pursuant to the applicable
provisions of this Indenture, and
thereafter, "Depositary" shall mean or
include such successor.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness and all
monetary obligations (including expenses,
fees and other monetary obligations)
under a Credit Facility and (ii) any other
Indebtedness constituting Senior
Indebtedness that, at any date of
determination, has an aggregate principal
amount of at least $25 million and is
specifically designated by the Company in
the instrument creating or evidencing such
Senior Indebtedness as "Designated
Senior Indebtedness."
"DTC" means The Depository Trust Company.
"EVENT OF DEFAULT" means any event specified in Section 6.01 as
an
Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended,
and the rules and regulations promulgated
thereunder, as in effect from time to
time.
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<PAGE>
"EXISTING CREDIT FACILITY" means the Credit Agreement dated as
of
December 22, 2003 by and among the Company,
certain Subsidiaries named therein,
the lenders, and arrangers named therein,
SunTrust Bank and Morgan Stanley
Senior Funding, Inc. as Co-Syndication
Agents, Cobank, ACB and The Bank of
Tokyo-Mitsubishi, Ltd., NY Branch, as
Co-Documentation Agents, Cooperatieve
Centrale Raiffeisen-Boerenleenbank, B.A.,
"Rabobank Nederland", Canadian Branch,
as Canadian Administrative Agent, and
Cooperatieve Centrale
Raiffeisen-Boerenleenbank, B.A., "Rabobank
Nederland", New York Branch, as
Administrative Agent, together with all
agreements, instruments and documents
executed or delivered pursuant thereto or
in connection therewith, in each case
as such agreements, documents or
instruments may be amended, restated, amended
and restated, supplemented, extended,
renewed, replaced or otherwise modified
from time to time and regardless of the
extent to which the participants therein
may change.
"FAIR MARKET VALUE" means the price that would be paid in an
arm's-length transaction between an
informed and willing seller under no
compulsion to sell and an informed and
willing buyer under no compulsion to buy,
as determined in good faith by one or more
members of the senior management of
the Company.
"GAAP" means generally accepted accounting principles in the
United
States of America as in effect as of the
Closing Date, 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 the amortization of any
premiums, fees or expenses incurred in
connection with the offering of the
Notes.
"GLOBAL NOTE" has the meaning specified in Section 2.02.
"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, 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 or other obligation 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 or non-binding comfort letters
limited to corporate intent or policies.
The term Guarantee used as a verb has a
corresponding meaning.
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<PAGE>
"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
Indebtedness by reason of a Person
becoming a Restricted Subsidiary of the
Company; 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 (other than any
non-negotiable notes issued to insurance carriers in lieu of
maintenance of policy reserves in connection with workers'
compensation
and liability insurance programs);
(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 clauses
(i)
or (ii) above or clauses (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 obligations of such Person as lessee under Capitalized
Leases;
(vi) all obligations of such Person under Currency Agreements,
Interest Rate Agreements, forward contracts, options, future
contracts,
future options or similar agreements or arrangements that are
entered
into outside the ordinary course of business and not designed
solely to
protect such Person against fluctuations in foreign currency
exchange
rates or interest rates;
(vii) all Indebtedness of the type described in clauses (i)
through (vi) above 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; and
(viii) all Indebtedness of the type described in clauses (i)
through (vii) above of other Persons Guaranteed by such Person to
the
extent such Indebtedness is Guaranteed by such Person.
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<PAGE>
The amount of Indebtedness of any Person at any date shall be
the
outstanding balance at such date of all
unconditional obligations as described
above and, with respect to contingent
obligations, the maximum liability upon
the occurrence of the contingency giving
rise to the obligation, provided that:
(A) the amount outstanding at any time of any Indebtedness
issued with original issue discount is the face amount of such
Indebtedness; and
(B) Indebtedness shall not include (1) any liability for
federal, state, local or other taxes or (2) any obligations of
such
Person pursuant to Receivables Programs to the extent such
obligations
are nonrecourse to such Person and its Subsidiaries.
"INDENTURE" means this instrument as originally executed or, if
amended
or supplemented as herein provided, as so
amended or supplemented.
"INTEREST" means, when used with reference to the Notes, any
interest
payable under the terms of the Notes.
"INTEREST COVERAGE RATIO" means, on any Transaction Date, the ratio
of
(i) the aggregate amount of Consolidated Cash Flow for the
then most recent four fiscal quarters prior to such Transaction
Date
for which reports have been filed with the SEC pursuant to Section
5.04
(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), 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 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;
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<PAGE>
(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 and including any
pro
forma expense and cost reductions related to any Asset
Acquisitions
calculated on a basis consistent with Regulation S-X under the
Exchange
Act) 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; 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 and including any
pro
forma expense and cost reductions related to any Asset
Acquisitions
calculated on a basis consistent with Regulation S-X under the
Exchange
Act) 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 or line of
business of the Person, that is acquired or
disposed for which financial
information is available.
"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 or other
similar agreement or arrangement designed
to protect the Company or any of its
Subsidiaries against fluctuations in
interest rates to or under which the
Company of any of its Subsidiaries is a
party or beneficiary or becomes a party or
a beneficiary hereafter.
"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 4.07; provided, however, that
appreciation
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<PAGE>
in the value of an Investment previously permitted by the terms of
this
Indenture shall not of itself constitute an Investment.
For purposes of the definition of "Unrestricted Subsidiary" and
Section
4.05:
(A) "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 Restricted Subsidiary is designated an
Unrestricted
Subsidiary;
(B) 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
(C) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of
such
transfer.
"INVESTMENT GRADE RATING" means a rating equal to or higher than
Baa3
(or the equivalent) by Moody's and BBB- (or
the equivalent) by S&P.
"INVESTMENT GRADE STATUS" shall be deemed to have been reached on
the
date that the Notes have an Investment
Grade Rating from both Rating Agencies,
provided that no Default or Event of
Default has occurred and is continuing on
such date.
"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 to the extent
that the obligation to do so has
arisen).
"MAKE-WHOLE PREMIUM" means, as to each Note, an amount equal to
the
greater of (i) 1.0% of the principal amount
of such Note and (ii) the excess of
(x) the present value of the sum of the
principal amount and premium that would
be payable on such Note on April 15, 2009
had such Note been redeemed pursuant
to the first paragraph of Section 3.01, and
all remaining interest payments to
and including April 15, 2009 (but excluding
any interest accrued to the
Make-Whole Redemption Date), discounted on
a semi-annual basis (assuming a
360-day year consisting of twelve 30-day
months) from April 15, 2009 to the
Make-Whole Redemption Date at a per-annum
interest rate equal to the Applicable
Treasury Rate on such Make-Whole Redemption
Date plus 0.50% over (y) the
outstanding principal amount of such
Note.
"MAKE-WHOLE REDEMPTION DATE" with respect to a Make-Whole
Redemption,
means the date such Make-Whole Redemption
is effected.
"MOODY'S" means Moody's Investors Service, Inc. and its
successors.
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<PAGE>
"NET CASH PROCEEDS" means:
(i) 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:
(A) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment
bankers) related to such Asset Sale;
(B) 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;
(C) payments made to repay Indebtedness or any other
obligation outstanding at the time of such Asset Sale that
either (1) is secured by a Lien on the property or assets sold
or (2) is required to be paid as a result of such sale; and
(D) appropriate amounts to be provided by the Company
or any Restricted Subsidiary of the Company 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; and
(ii) 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.
"NOTE" or "NOTES" has the meaning specified in the recitals hereof,
and
includes both Original Notes and Additional
Notes that are executed and
delivered under this Indenture.
"NOTE REGISTER" has the meaning specified in Section 2.05(a).
"NOTE REGISTRAR" has the meaning specified in Section 2.05(a).
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<PAGE>
"NOTEHOLDER" or "HOLDER" as applied to any Note, or other similar
terms
(but excluding the term "beneficial
holder"), means any Person in whose name at
the time a particular Note is registered on
the Note registrar's books.
"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 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
(euro)1,000 or integral multiples thereof.
On the payment date, the Company shall:
(A) accept for payment on a pro rata basis Notes or portions
thereof tendered pursuant to an Offer to Purchase;
(B) deposit with the paying agent money sufficient to pay the
purchase price of all Notes or portions thereof so accepted;
and
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<PAGE>
(C) 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
(euro)1,000 or integral multiples 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 any vice president, any assistant vice president,
any
assistant secretary, any assistant
treasurer, 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.
"OFFICERS' CERTIFICATE" of the Company means a certificate signed
by
the Chairman of the Board of Directors, a
Vice Chairman of the Board of
Directors, the Chief Executive Officer, the
President or a Vice President or the
Chief Financial Officer, and by the
Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the
Company, as the case may be, and
delivered to the Trustee. One of the
officers signing an Officers' Certificate
given pursuant to Section 4.21 shall be the
principal executive, financial or
accounting officer of the Company or the
chief operating officer of the Company.
Unless the context otherwise requires, each
reference herein to an "Officers'
Certificate" shall mean an Officers'
Certificate of the Company. References
herein, or in any Note, to any officer of a
Person that is a partnership shall
mean such officer of the partnership or, if
none, of a general partner of the
partnership authorized thereby to act on
its behalf.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal
counsel, who may be an employee of or
counsel to the Company, or other counsel
reasonably acceptable to the Trustee.
"OPTIONAL REDEMPTION" has the meaning specified in Section
3.01.
"ORIGINAL NOTES" has the meaning specified in Section 2.01.
"OUTSTANDING", when used with reference to Notes and subject to
the
provisions of Section 8.04, means, as of
any particular time, all Notes
authenticated and delivered by the Trustee
under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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(b) Notes, or portions thereof, (i) for the redemption of
which monies in the necessary amount shall have been deposited in
trust
with the Trustee or with any paying agent (other than the Company)
or
(ii) which shall have been otherwise discharged in accordance
with
Article XII; and
(c) Notes in lieu of which, or in substitution for which,
other Notes shall have been authenticated and delivered pursuant to
the
terms of Section 2.06.
"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 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) loans or advances to employees (other than executive
officers and directors) made in the ordinary course of business
in
accordance with past practice of the Company or its Restricted
Subsidiaries and that do not in the aggregate exceed $3 million at
any
time outstanding;
(v) stock, obligations or securities received in satisfaction
of judgments or in settlement of claims arising in the ordinary
course
of business;
(vi) any Investment acquired as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to
and
in compliance with Section 4.11;
(vii) Currency Agreements and Interest Rate Agreements that
are used solely as part of normal business operations as a risk
management strategy and/or hedge against charges resulting from
market
operations in accordance with the Company's customary policies and
not
as a means to speculate for investment purposes or trends and
shifts in
financial or commodities markets;
(viii) any Investment in bonds in connection with a Tax
Abatement Transaction; and
(ix) any Investment in the form of a Guarantee by the Company
or any Restricted Subsidiary of any Indebtedness of the Company or
any
Restricted Subsidiary permitted to be incurred hereunder.
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<PAGE>
"PERMITTED LIENS" means:
(i) Liens on assets of the Company and its Restricted
Subsidiaries, whether owned on the Closing Date or thereafter
acquired,
securing Senior Indebtedness;
(ii) Liens in favor of the Company or a Restricted Subsidiary;
(iii) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business;
(iv) Liens on assets of Restricted Subsidiaries to secure
Indebtedness of Restricted Subsidiaries that was permitted by the
terms
of this Indenture to be Incurred;
(v) Liens existing on the Closing Date;
(vi) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in
good
faith by appropriate proceedings promptly instituted and
diligently
conducted; provided that any reserve or other appropriate provision
as
shall be required in conformity with GAAP shall have been made
therefor;
(vii) Liens on receivables, payment intangibles and related
property to reflect sales of receivables or payment intangibles
pursuant to a Receivables Program;
(viii) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are either 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, future 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;
(ix) 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;
(x) Liens on property of, or on shares of stock or
Indebtedness of, any Person existing at the time such Person
becomes,
or becomes a part of, 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
and proceeds therefrom;
(xi) 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;
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(xii) 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;
(xiii) 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;
(xiv) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the Closing Date;
provided
that
(A) such Lien is created solely for the purpose of securing
Indebtedness Incurred, in accordance with Section 4.03, (1) 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 or (2) to refinance any Indebtedness
previously so secured, (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;
(xv) Liens to secure Attributable Debt in respect of a
Sale/Leaseback Transaction that is permitted under Section
4.12;
(xvi) any interest or title of a lessor in the property
subject to any Capitalized Lease or operating lease;
(xvii) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(xviii) Statutory Liens of landlords and 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;
(xix) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment
insurance and other types of social security;
(xx) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory or regulatory obligations,
bankers'
acceptances, surety and 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);
(xxi) Easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or
other
irregularities that do not materially interfere
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with the ordinary course of business of the Company or any of
its
Restricted Subsidiaries;
(xxii) 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; and
(xxiii) 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.
"PERSON" means any individual, partnership, joint venture,
firm,
corporation, limited liability company,
association, trust or other enterprise
or any government or political subdivision
or any agency, department or
instrumentality thereof.
"PREDECESSOR NOTE" of any particular Note means every previous
Note
evidencing all or a portion of the same
debt as that evidenced by such
particular Note, and, for the purposes of
this definition, any Note
authenticated and delivered under Section
2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the
same debt as the lost, destroyed or
stolen Note that it replaces.
"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.
"PREMIUM" means any premium payable under the terms of the
Notes.
"PRINCIPAL" of a debt security, including the Notes, means the
principal amount due on the Stated Maturity
as shown on such debt security.
"PRINCIPAL CORPORATE TRUST OFFICE" means the designated office of
the
Trustee at which its corporate trust
business as it relates to this Indenture
shall be principally administered at any
particular time, which office at the
date hereof is located at 25 Park Place,
NE, 24th Floor, Atlanta, Georgia 30303.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company or
any
of its Restricted Subsidiaries incurred in
the normal course of business for the
purpose of financing all or any part of the
purchase price or cost of
installation, construction or improvement
of any property or equipment.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Redeemable Stock.
"RATING AGENCIES" means Moody's and S&P.
"RECEIVABLES PROGRAM" means, with respect to any Person, any
accounts
receivable securitization or factoring
program pursuant to which such Person
receives proceeds pursuant to a pledge,
sale or other encumbrance of its
accounts receivable or payment
intangibles.
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<PAGE>
"RECORD DATE" has the meaning specified in Section 2.03 with
respect to
any interest payment date, and for any
other purpose means the record date
established by the Company for a specified
purpose.
"REDEEMABLE 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 Redeemable 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 "change of control" occurring
prior to the Stated Maturity of the Notes
shall not constitute Redeemable 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
4.13 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 4.13.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other
than
an Unrestricted Subsidiary.
"SALE/LEASEBACK TRANSACTION" means an agreement relating to
property
now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary
transfers such property to a Person and the
Company or a Restricted Subsidiary
leases it back from such Person, provided
that Sale/Leaseback Transaction shall
not include any Tax Abatement
Transaction.
"SECURED INDEBTEDNESS" means any Indebtedness of the Company
secured by
a Lien.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the
rules and regulations promulgated
thereunder, as in effect from time to time.
"SENIOR INDEBTEDNESS" means the following obligations of the
Company,
whether outstanding on the date of this
Indenture or thereafter Incurred:
(i) all Indebtedness and all other monetary obligations
(including, without limitation, expenses, fees, claims,
indemnifications, reimbursements, liabilities and other
monetary
obligations and any obligation to deliver cash as collateral
security
for contingent reimbursement obligations in respect of
outstanding
letters of credit of the Company) under a Credit Facility
(including
the Existing Credit Facility), any Interest
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Rate Agreement or Currency Agreement and the Company's Guarantee of
any
Indebtedness or monetary obligation of any of its Subsidiaries
under
any Interest Rate Agreement or Currency Agreement; and
(ii) all other Indebtedness of the Company, including
principal and interest on such Indebtedness, unless such
Indebtedness,
by its terms or by the terms of any agreement or instrument
pursuant to
which such Indebtedness is issued, is pari passu with, or
subordinated
in right of payment to, the Notes;
provided that the term "Senior Indebtedness" shall not include:
(a) any Indebtedness of the Company that, when Incurred, and
without respect to any election under Section 1111(b) of the
United
States Bankruptcy Code, was without recourse to the Company;
(b) any Indebtedness of the Company that by its express terms
is not senior to the Notes or is pari passu or junior to the
Notes;
(c) any Indebtedness of the Company to any of its Subsidiaries
or to a joint venture in which the Company has an interest;
(d) any Indebtedness of the Company not permitted by this
Indenture;
(e)
any repurchase, redemption or other obligation in respect
of Redeemable Stock;
(f) any Indebtedness of the Company to any employee, officer
or director of the Company or any of its Subsidiaries;
(g) any
liability for federal, state, local or other taxes
owned or owning by the Company;
(h) any Trade Payables of the Company;
(i) the Convertible Notes; or
(j) the Notes.
Senior Indebtedness will also include interest accruing subsequent
to
events of bankruptcy of the Company and its
Subsidiaries at the rate provided
for in the document governing such Senior
Indebtedness, whether or not such
interest is an allowed claim enforceable
against the debtor in a bankruptcy case
under federal bankruptcy law or similar
laws relating to insolvency. For
purposes of clause (d) of the immediately
preceding proviso, a good faith
determination by the Chief Financial
Officer of the Company, evidenced by an
Officer's Certificate, that any
Indebtedness was permitted by this Indenture
shall be conclusive.
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<PAGE>
It is the intent of the Company that the Notes shall rank pari
passu
with the Convertible Notes.
"SENIOR NOTE INDENTURE" means the indenture dated April 17, 2001
among
the Company, as issuer, AGCO Ventures LLC,
Hesston Ventures Corporation, Hay &
Forage Industries, Ag-Chem Equipment Co.,
Inc., Ag-Chem Manufacturing Co., Inc.,
Ag-Chem Sales Co., Inc., Ag-Chem Equipment
International, Inc., Lor*Al Products,
Inc. and Ag-Chem Equipment Canada, Ltd., as
subsidiary guarantors, and SunTrust
Bank, as trustee.
"SENIOR NOTES" means the 9-1/2% senior notes due May 1, 2008 issued
by
the Company under the Senior Note
Indenture.
"SENIOR SUBORDINATED NOTES" means the 8-1/2% Senior Subordinated
Notes
due 2006 issued pursuant to the Indenture,
dated as of March 20, 1996, among the
Company and SunTrust Bank, as trustee.
"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.
"S&P" means Standard & Poor's, a division of The McGraw
Hill Companies,
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 interest on any debt security, the date specified in such
debt
security as the fixed dated 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.
"TAX ABATEMENT
TRANSACTION" means any revenue bond financing
arrangement between any Person and a
development authority or other similar
governmental authority or entity for the
purpose of providing ad valorem
property tax abatement to such Person
whereby (i) the
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<PAGE>
development authority issues revenue bonds
to finance the acquisition of
property that is now owned or hereafter
acquired by the Company or a Restricted
Subsidiary, (ii) the property so
transferred is leased back by the Company or
such Restricted Subsidiary, (iii) the bonds
issued to finance the acquisition
are owned by the Company or a Restricted
Subsidiary, (iv) the rental payments on
the lease and the debt service payments on
the bonds are substantially equal and
(v) the Company or such Restricted
Subsidiary has the option to prepay the
bonds, terminate its lease and reacquire
the property for nominal consideration
at any time; provided that if at any time
any of the foregoing conditions shall
cease to be satisfied, such transaction
shall cease to be a Tax Abatement
Transaction and the transaction must
satisfy Section 4.12.
"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 180 days 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, and which bank or
trust
company has capital, surplus and undivided profits aggregating
in
excess of $200 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 90 days 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 six months 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.
"TRADE PAYABLES" means, with respect to 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 in
connection with the acquisition of goods
or services.
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<PAGE>
"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.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of
1939,
as amended, as it was in force at the date
of this Indenture; provided that if
the Trust Indenture Act of 1939 is amended
after the date hereof, the term
"Trust Indenture Act" shall mean, to the
extent required by such amendment, the
Trust Indenture Act of 1939 as so
amended.
"TRUSTEE" means SunTrust Bank, a Georgia banking corporation, and
its
successors and any corporation resulting
from or surviving any consolidation or
merger to which it or its successors may be
a party and any successor trustee at
the time serving as successor trustee
hereunder.
"UNRESTRICTED SUBSIDIARY" means:
(i) AGCO Acceptance Corporation and its successors, provided
in the case of any such successor that the property and assets of
such
successor at the time it becomes an Unrestricted Subsidiary do
not
include any property or assets of the Company or any of its
Restricted
Subsidiaries;
(ii) 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
(iii) 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 by the Company or
such
Restricted Subsidiary (or both, if applicable) at the time of
such
designation;
(B) either (1)
the Subsidiary to be so designated has total
assets of $1,000 or less or (2) if such Subsidiary has assets
greater
than $1,000, such designation would be permitted under Section
4.05;
and
(C) if applicable, the Incurrence of Indebtedness referred to
in clause (A) of this proviso would be permitted under Section
4.03.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary;
provided that immediately after giving
effect to such designation:
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<PAGE>
(x) the Company could Incur $1.00 of additional Indebtedness
under paragraph (a) of Section 4.03, and
(y) no
Default or Event of Default shall have occurred and be
continuing.
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. 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.
"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.
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ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF
NOTES
Section 2.01. Designation, Amount and Issue of Notes. The
Notes shall be designated as set forth in
Exhibit A. The payment of obligations
of the Company under the Notes shall be
subordinated to the Company's Senior
Indebtedness, including the obligation of
the Company under the Senior Notes and
the Existing Credit Facility and shall rank
pari passu with the obligations of
the Company under the Senior Subordinated
Notes and the Convertible Notes. The
aggregate principal amount of Notes that
may be authenticated and delivered
under this Indenture is unlimited. Notes
not to exceed the aggregate principal
amount of (euro)200 million (the "ORIGINAL
NOTES") upon the execution of this
Indenture may be executed by the Company
and delivered to the Trustee for
authentication, and the Trustee shall
thereupon authenticate and deliver said
Notes to or upon the written order of the
Company, signed by its Chairman of the
Board of Directors, Vice Chairman of the
Board of Directors, Chief Executive
Officer, President, Chief Financial Officer
or any Vice President, without any
further action by the Company hereunder. In
addition, subject to the provisions
of Section 15.05, an unlimited aggregate
principal amount of additional Notes
(the "ADDITIONAL NOTES") may be executed
after the date of this Indenture by the
Company and delivered to the Trustee for
authentication, and the Trustee shall,
upon receipt of an Officers' Certificate
specifying the amount of Notes to be
authenticated and the date on which such
Notes are to be authenticated and
certifying that all conditions precedent to
the issuance of the Additional Notes
contained herein have been complied with
and that no default or Event of Default
would occur as a result of the issuance of
such Additional Notes, authenticate
and deliver said Additional Notes to or
upon the written order of the Company,
signed as set forth in the preceding
sentence; provided that Additional Notes
may be issued under this Indenture only if
such Additional Notes and the
Original Notes constitute one series for
United States Federal income tax
purposes. The Original Notes and the
Additional Notes, if any, shall constitute
one series for all purposes under this
Indenture, including, without limitation,
amendments, waivers and redemptions.
Section 2.02. Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne
by such Notes shall be substantially
in the form set forth in Exhibit A. The
terms and provisions contained in the
form of Note attached as Exhibit A hereto
shall constitute, and are hereby
expressly made, a part of this Indenture
and, to the extent applicable, the
Company and the Trustee, by their execution
and delivery of this Indenture,
expressly agree to such terms and
provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks
of identification and such notations,
legends, endorsements or changes as the
officers executing the same may approve
(execution thereof to be conclusive
evidence of such approval) and as are not
inconsistent with the provisions of
this Indenture, or as may be required law,
stock exchange requirements to which
the Company is subject or usage.
So long as the Notes are eligible for book-entry settlement
with the Depositary, or unless otherwise
required by law, or otherwise
contemplated by Section 2.05(b), all of the
Notes will be represented by one or
more Notes in global form registered in the
name of the Depositary or the
nominee of the Depositary (a "GLOBAL
NOTE"). The transfer and exchange of
beneficial interests in any such Global
Note shall be effected through the
Depositary in accordance with
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<PAGE>
this Indenture and the applicable
procedures of the Depositary. Except as
provided in Section 2.05(b), beneficial
owners of a Global Note shall not be
entitled to have certificates registered in
their names, will not receive or be
entitled to receive physical delivery of
certificates in definitive form and
will not be considered holders of such
Global Note.
Any Global Note shall represent such of the outstanding Notes
as shall be specified therein and shall
provide that it shall represent the
aggregate amount of outstanding Notes from
time to time endorsed thereon and
that the aggregate amount of outstanding
Notes represented thereby may from time
to time be increased or reduced to reflect
redemptions, repurchases, transfers
or exchanges permitted hereby. Any
endorsement of a Global Note to reflect the
amount of any increase or decrease in the
amount of outstanding Notes
represented thereby shall be made by the
Trustee or the Custodian, at the
direction of the Trustee, in such manner
and upon written instructions given by
the holder of such Notes in accordance with
this Indenture. Payment of principal
of and interest and premium, if any, on any
Global Note shall be made to the
holder of such Global Note.
Section 2.03. Date and Denomination of Notes; Payments of
Interest. Subject to Section 2.02, the
Notes shall be issuable in registered
form without coupons in denominations of
(euro)1,000 principal amount and
multiples thereof. Each Note shall be dated
the date of its authentication and
shall bear interest from the date specified
on the face of the form of Note
attached as Exhibit A hereto. Interest on
the Notes shall be computed on the
basis of a 360-day year comprised of twelve
30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note register at the
close of business on any record date with
respect to any interest payment date shall
be entitled to receive the interest
payable on such interest payment date,
except that the interest payable upon
redemption or repurchase will be payable to
the Person to whom principal is
payable pursuant to such redemption or
repurchase (unless the redemption date or
the repurchase date, as the case may be, is
an interest payment date, in which
case the semi-annual payment of interest
becoming due on such date shall be
payable to the holders of such Notes
registered as such on the applicable record
date). Interest shall be payable at the
office of the Company maintained by the
Company for such purposes in the Borough of
Manhattan, The City of New York,
which shall initially be the Corporate
Trust Office of the Trustee, or, so long
as the Notes are listed on the Luxembourg
Stock Exchange, the office of a paying
agent designated by the Company in
accordance with the requirements of the
Luxembourg Stock Exchange, and may, as the
Company shall specify to the paying
agent in writing by each record date, be
paid either (i) by check mailed to the
address of the Person entitled thereto as
it appears in the Note register
(provided that any holder of Notes with an
aggregate principal amount in excess
of (euro)2,000,000 shall, at the written
election of such holder (such election
to be made prior to the relevant record
date and to contain appropriate wire
transfer information), be paid by wire
transfer in immediately available funds)
or (ii) by transfer to an account
maintained by such Person located in the
United States; provided that payments to
the Depositary will be made by wire
transfer of immediately available funds to
the account of the Depositary or its
nominee. The term "RECORD DATE" with
respect to any interest payment date shall
mean the April 1 or October 1 preceding the
applicable April 15 or October 15
interest payment date, respectively.
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<PAGE>
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on
any April 15 or October 15 (herein
called "DEFAULTED INTEREST") shall
forthwith cease to be payable to the
Noteholder on the relevant record date by
virtue of his having been such
Noteholder, and such Defaulted Interest
shall be paid by the Company, at its
election in each case, as provided in
clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their
respective
Predecessor Notes) are registered at the close of business on a
special
record date for the payment of such Defaulted Interest, which shall
be
fixed in the following manner. The Company shall provide an
Officers'
Certificate to the Trustee specifying the amount of Defaulted
Interest
proposed
to be paid on each Note and the date of the proposed payment
(which shall be not less than twenty-five (25) days after the
receipt
by the Trustee of such notice, unless the Trustee shall consent to
an
earlier date), and at the same time the Company shall deposit with
the
Trustee an amount of money equal to the aggregate amount to be paid
in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the
date of
the proposed payment, such money when deposited to be held in trust
for
the benefit of the Persons entitled to such Defaulted Interest as
in
this clause provided. Thereupon the Trustee shall fix a special
record
date for the payment of such Defaulted Interest which shall be not
more
than fifteen (15) days and not less than ten (10) days prior to
the
date of the proposed payment, and not less than ten (10) days after
the
receipt by the Trustee of the notice of the proposed payment.
The
Trustee shall promptly notify the Company of such special record
date
and, in the name and at the expense of the Company, shall cause
notice
of the proposed payment of such Defaulted Interest and the
special
record date therefor to be mailed, first-class postage prepaid, to
each
holder at his address as it appears in the Note register, not less
than
ten (10) days prior to such special record date. Notice of the
proposed
payment of such Defaulted Interest and the special record date
therefor
having been so mailed, such Defaulted Interest shall be paid to
the
Persons in whose names the Notes (or their respective
Predecessor
Notes) are registered at the close of business on such special
record
date and shall no longer be payable pursuant to the following
clause
(2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any
securities exchange or automated quotation system on which the
Notes
may be listed or designated for issuance, and upon such notice as
may
be required by such exchange or automated quotation system, if,
after
notice given by the Company to the Trustee of the proposed
payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.04. Execution and Authentication of Notes. The Notes
shall be signed in the name and on behalf
of the Company by the manual or
facsimile signature of its Chairman of the
Board of Directors, Vice Chairman of
the Board of Directors, Chief Executive
Officer, President, Chief Financial
Officer or any Vice President. The
signature of any of these officers on the
Notes may be manual or facsimile. Only such
Notes as shall bear thereon a
certificate of authentication substantially
in the form set forth on the form of
Note attached as Exhibit A hereto, manually
executed by the Trustee (or an
authenticating agent appointed by the
Trustee as
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<PAGE>
provided by Section 15.11), shall be
entitled to the benefits of this Indenture
or be valid or obligatory for any purpose.
Such certificate by the Trustee (or
such an authenticating agent) upon any Note
executed by the Company shall be
conclusive evidence that the Note so
authenticated has been duly authenticated
and delivered hereunder and that the holder
is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any
of the Notes shall cease to be such officer
before the Notes so signed shall
have been authenticated and delivered by
the Trustee, or disposed of by the
Company, such Notes nevertheless may be
authenticated and delivered or disposed
of as though the person who signed such
Notes had not ceased to be such officer
of the Company, and any Note may be signed
on behalf of the Company by such
persons as, at the actual date of the
execution of such Note, shall be the
proper officers of the Company, although at
the date of the execution of this
Indenture any such person was not such an
officer.
Section 2.05. Exchange and Registration of Transfer of Notes;
Restrictions on Transfer.
(a) The Company shall cause to be kept at the Corporate Trust
Office a register (the register maintained
in such office and in any other
office or agency of the Company designated
pursuant to Section 4.14 being herein
sometimes collectively referred to as the
"NOTE REGISTER") in which, subject to
such reasonable regulations as it may
prescribe, the Company shall provide for
the registration of Notes and of transfers
of Notes. The Note register shall be
in written form or in any form capable of
being converted into written form
within a reasonably prompt period of time.
The Trustee is hereby appointed "NOTE
REGISTRAR" for the purpose of registering
Notes and transfers of Notes as herein
provided. The Company may appoint one or
more co-registrars in accordance with
Section 4.14.
Upon surrender for registration of transfer of any Note to the
Note registrar or any co-registrar, and
satisfaction of the requirements for
such transfer set forth in this Section
2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in
the name of the designated transferee
or transferees, one or more new Notes of
any authorized denominations and of a
like aggregate principal amount and bearing
such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate
principal amount, upon surrender of the
Notes to be exchanged at any such office or
agency maintained by the Company
pursuant to Section 4.14. Whenever any
Notes are so surrendered for exchange,
the Company shall execute, and the Trustee
shall authenticate and deliver, the
Notes which the Noteholder making the
exchange is entitled to receive bearing
registration numbers not contemporaneously
outstanding.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of
the Company, evidencing the same
debt, and entitled to the same benefits
under this Indenture, as the Notes
surrendered upon such registration of
transfer or exchange.
-30-
<PAGE>
All Notes presented or surrendered for registration of
transfer or for exchange, redemption or
repurchase shall (if so required by the
Company or the Note registrar) be duly
endorsed, or be accompanied by a written
instrument or instruments of transfer in
form satisfactory to the Company or the
Note registrar, as the case may be, and the
Notes shall be duly executed by the
Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made to any holder for any
registration of transfer or exchange of
Notes, but either the Company, the
Trustee or both may require payment by the
holder of a sum sufficient to cover
any tax, assessment or other governmental
charge that may be imposed in
connection with any registration of
transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note registrar
shall be required to exchange or register a
transfer of (a) any Notes for a
period of fifteen (15) days next preceding
any selection of Notes to be
redeemed, or (b) any Notes or portions
thereof called for redemption pursuant to
Section 3.02.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this
Indenture shall be registered in the name of the Depositary or
a
nominee thereof and delivered to such Depositary or a nominee
thereof
or Custodian therefor, and each such Global Note shall constitute
a
single Note for all purposes of this Indenture.
(ii) Notwithstanding any other provision in this
Indenture, no Global Note may be exchanged in whole or in part
for
Notes registered, and no transfer of a Global Note in whole or in
part
may be registered, in the name of any Person other than the
Depositary
or a nominee thereof unless (A) the Depositary (i) has notified
the
Company that it is unwilling or unable to continue as Depositary
for
such Global Note or (ii) has ceased to be a clearing agency
registered
under the Exchange Act and a successor Depositary is not appointed
by
the Company within 90 days, (B) an Event of Default has occurred
and is
continuing and the maturity of the Notes shall have been
accelerated in
accordance with the terms of the Notes and any holder shall
have
requested in writing the issuance of definitive certificated
securities, or (C) the Company, in its sole discretion, notifies
the
Trustee in writing that it no longer wishes to have all the
Notes
represented by Global Notes. Any Global Note exchanged pursuant
to
clause (A) or (B) above shall be so exchanged in whole and not in
part
and any Global Note exchanged pursuant to clause (C) above may
be
exchanged in whole or from time to time in part as directed by
the
Company. Any Note issued in exchange for a Global Note or any
portion
thereof shall be a Global Note; provided that any such Note so
issued
that is registered in the name of a Person other than the
Depositary or
a nominee thereof shall not be a Global Note.
(iii) Notes issued in exchange for a Global Note or
any portion thereof pursuant to clause (ii) above and which is not
a
Global Note shall be issued in definitive, fully registered
form,
without interest coupons, shall have an aggregate principal
amount
equal to that of such Global Note or portion thereof to be so
exchanged, shall be registered in such names and be in such
authorized
denominations as the Depositary shall
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<PAGE>
designate and shall bear any legends required hereunder. Any
Global
Note to be exchanged in whole shall be surrendered by the
Depositary to
the Trustee, as Note registrar. With regard to any Global Note to
be
exchanged in part, either such Global Note shall be so surrendered
for
exchange or, if the Trustee is acting as Custodian for the
Depositary
or its nominee with respect to such Global Note, the principal
amount
thereof shall be reduced, by an amount equal to the portion thereof
to
be so exchanged, by means of an appropriate adjustment made on
the
records of the Trustee. Upon any such surrender or adjustment,
the
Trustee shall authenticate and make available for delivery the
Note
issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the
events specified in clause (ii) above, the Company will promptly
make
available to the Trustee a reasonable supply of certificated Notes
in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary ("AGENT MEMBERS") nor any other Persons on whose
behalf
Agent Members may act shall have any rights under this Indenture
with
respect to any Global Note registered in the name of the Depositary
or
any nominee thereof, and the Depositary or such nominee, as the
case
may be, may be treated by the Company, the Trustee and any agent of
the
Company or the Trustee as the absolute owner and holder 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 such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf
an
Agent Member may act, the operation of customary practices of
such
Persons governing the exercise of the rights of a holder of any
Note.
(vi) At such time as all interests in a Global Note
have been redeemed, repurchased, canceled or exchanged for Notes
in
certificated form, such Global Note shall, upon receipt thereof,
be
canceled by the Trustee in accordance with standing procedures
and
instructions existing between the Depositary and the Custodian. At
any
time prior to such cancellation, if any interest in a Global Note
is
redeemed, repurchased, converted, canceled or exchanged for Notes
in
certificated form, the principal amount of such Global Note shall,
in
accordance with the standing procedures and instructions
existing
between the Depositary and the Custodian, be appropriately reduced,
and
an endorsement shall be made on such Global Note, by the Trustee or
the
Custodian, at the direction of the Trustee, to reflect such
reduction.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In
case any Note shall become mutilated or be
destroyed, lost or stolen, the
Company in its discretion may execute, and
upon its written request the Trustee
or an authenticating agent appointed by the
Trustee shall authenticate and make
available for delivery, a new Note, bearing
a number not contemporaneously
outstanding, in exchange and substitution
for the mutilated Note, or in lieu of
and in substitution for the Note so
destroyed, lost or stolen. In every case,
the applicant for a substituted Note shall
furnish to the Company, to the
Trustee and, if applicable, to such
authenticating agent such security or
indemnity as may be required by them to
save each of them
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<PAGE>
harmless for any loss, liability, cost or
expense caused by or connected with
such substitution, and, in every case of
destruction, loss or theft, the
applicant shall also furnish to the
Company, to the Trustee and, if applicable,
to such authenticating agent evidence to
their satisfaction of the destruction,
loss or theft of such Note and of the
ownership thereof.
Following receipt by the Trustee or such authenticating agent,
as the case may be, of satisfactory
security or indemnity and evidence, as
described in the preceding paragraph, the
Trustee or such authenticating agent
may authenticate any such substituted Note
and make available for delivery such
Note. Upon the issuance of any substituted
Note, either the Company, the Trustee
or both may require the payment by the
holder of a sum sufficient to cover any
tax, assessment or other governmental
charge that may be imposed in relation
thereto and any other expenses connected
therewith. In case any Note which has
matured or is about to mature or has been
called for redemption shall become
mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a
substitute Note, pay or authorize the
payment of the same (without surrender
thereof except in the case of a mutilated
Note), as the case may be, if the
applicant for such payment shall furnish to
the Company, to the Trustee and, if
applicable, to such authenticating agent
such security or indemnity as may be
required by them to save each of them
harmless for any loss, liability, cost or
expense caused by or in connection with
such substitution, and, in every case of
destruction, loss or theft, the applicant
shall also furnish to the Company, the
Trustee and, if applicable, any paying
agent evidence to their satisfaction of
the destruction, loss or theft of such Note
and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of
this Section 2.06 by virtue of the fact
that any Note is destroyed, lost or
stolen shall constitute an additional
contractual obligation of the Company,
whether or not the destroyed, lost or
stolen Note shall be found at any time,
and shall be entitled to all the benefits
of (but shall be subject to all the
limitations set forth in) this Indenture
equally and proportionately with any
and all other Notes duly issued hereunder.
To the extent permitted by law, all
Notes shall be held and owned upon the
express condition that the foregoing
provisions are exclusive with respect to
the replacement or payment or
redemption or repurchase of mutilated,
destroyed, lost or stolen Notes and shall
preclude any and all other rights or
remedies notwithstanding any law or statute
existing or hereafter enacted to the
contrary with respect to the replacement or
payment or redemption or repurchase of
negotiable instruments or other
securities without their surrender.
Section 2.07. Temporary Notes. Pending the preparation of
Notes in certificated form, the Company may
execute and the Trustee or an
authenticating agent appointed by the
Trustee shall, upon the written request of
the Company, authenticate and deliver
temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any
authorized denomination, and
substantially in the form of the Notes in
certificated form, but with such
omissions, insertions and variations as may
be appropriate for temporary Notes,
all as may be determined by the Company.
Every such temporary Note shall be
executed by the Company and authenticated
by the Trustee or such authenticating
agent upon the same conditions and in
substantially the same manner, and with
the same effect, as the Notes in
certificated form. Without unreasonable delay,
the Company will execute and deliver to the
Trustee or such authenticating agent
Notes in certificated form and thereupon
any or all temporary Notes may be
surrendered in exchange therefor, at each
office or agency maintained by the
Company pursuant to Section 4.14 and the
Trustee or such authenticating agent
shall authenticate and make
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<PAGE>
available for delivery in exchange for such
temporary Notes an equal aggregate
principal amount of Notes in certificated
form. Such exchange shall be made by
the Company at its own expense and without
any charge therefor. Until so
exchanged, the temporary Notes shall in all
respects be entitled to the same
benefits and subject to the same
limitations under this Indenture as Notes in
certificated form authenticated and
delivered hereunder.
Section 2.08. Cancellation of Notes. If the Company shall
acquire any of the Notes, such acquisition
shall not operate as a redemption,
repurchase or satisfaction of the
indebtedness represented by such Notes unless
and until the same are delivered to the
Trustee for cancellation. All Notes
surrendered for the purpose of payment,
redemption, repurchase, exchange or
registration of transfer shall, if
surrendered to the Company or any paying
agent or any Note registrar, be surrendered
to the Trustee and promptly canceled
by it, or, if surrendered to the Trustee,
shall be promptly canceled by it, and
no Notes shall be issued in lieu thereof
except as expressly permitted by any of
the provisions of this Indenture. The
Trustee shall dispose of such canceled
Notes in accordance with its customary
procedures. Any Notes surrendered by the
Company to the Trustee for cancellation
shall be accompanied by an Officers'
Certificate requesting the Trustee to
effect such cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes
may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of
redemption as a convenience to
Noteholders; provided that any such notice
may state that no representation is
made as to the correctness of such numbers
either as printed on the Notes or as
contained in any notice of a redemption and
that reliance may be placed only on
the other identification numbers printed on
the Notes, and any such redemption
shall not be affected by any defect in or
omission of such numbers. The Company
will promptly notify the Trustee in writing
of any change in the "CUSIP"
numbers.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01. Redemption of Notes at the Option of the
Company. Except as otherwise provided in
this Article III, the Company may not
redeem any Notes prior to April 15, 2009.
At any time on or after April 15,
2009, the Notes may be redeemed at the
option of the Company (an "OPTIONAL
REDEMPTION"), in whole or in part, in cash,
upon notice as set forth in Section
3.03, at the following Redemption prices,
together with accrued and unpaid
interest, if any, to the redemption date
(subject to the right of holders of
record on the relevant record date that is
on or prior to the redemption date to
receive interest due on an interest payment
date), if redeemed during the
12-month period commencing April 15, of the
years set forth below:
<TABLE>
<CAPTION>
REDEMPTION
YEAR
PRICE
--------------------------------------------------
----------
<S>
<C>
2009
.............................................
103.438%
2010
.............................................
102.292%
2011
.............................................
101.146%
2012 and thereafter
..............................
100.000%
</TABLE>
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<PAGE>
In addition, on or prior to April 15, 2009, the Company may
redeem the Notes, at its option, in whole
at any time or in part from time to
time, at a redemption price equal to 100%
of the principal amount thereof, plus
accrued interest, if any, to the redemption
date, plus the Make-Whole Premium (a
"MAKE-WHOLE REDEMPTION").
Notwithstanding the foregoing, at any time, or from time to
time, on or prior to April 15, 2007, the
Company may, at its option, use all or
any portion of the Net Cash Proceeds of one
or more Qualified Equity Offerings
(as defined below) to redeem up to 35% of
the aggregate principal amount of the
Notes issued at a redemption price equal to
106.875% of the principal amount
thereof plus accrued and unpaid interest,
if any, to the date of redemption;
provided that at least 65% of the aggregate
principal amount of Notes originally
issued remains outstanding immediately
after any such redemption. In order to
effect the foregoing redemption with the
proceeds of any Qualified Equity
Offering, the Company shall consummate such
redemption not more than 120 days
after the consummation of any such
Qualified Equity Offering.
As used in the preceding paragraph, "QUALIFIED EQUITY
OFFERING" means any public or private
offering of Qualified Capital Stock of the
Company (other than any such offering to a
Subsidiary of the Company) to the
extent that the Net Cash Proceeds therefrom
are contributed to the common equity
capital of the Company or are used to
subscribe from the Company shares of its
Qualified Capital Stock.
Section 3.02. Redemption by the Company for Tax Purposes. In
addition to the Company's ability to redeem
the Notes as provided in Section
3.01, the Company may, at its option,
redeem the Notes as a whole, but not in
part, on not less than 30 nor more than 60
days' prior notice to the relevant
redemption date, if:
(i) (A) the Company becomes or will become obligated
to pay additional amounts as described under Section 4.02, (B)
the
obligation to pay additional amounts arises as a result of any
change
in the laws, regulations or rulings of the United States, or an
official position regarding the application or interpretation of
such
laws, regulations or rulings, which change is announced or
becomes
effective on or after the date of issuance of the Notes, and (C)
the
Company determines, in its business judgment, that the obligation
to
pay such additional amounts cannot be avoided by the use of
reasonable
measures available to it, other than substituting the obligor under
the
Notes or taking any action that would entail a material cost to
the
Company; or
(ii) (A) any act is taken by a taxing authority of
the United States on or after the date of the issuance of the
Notes,
whether or not such act is taken in relation to the Company or
any
Affiliate, that results in a substantial probability that the
Company
will or may be required to pay additional amounts as described
under
Section 4.02, (B) the Company determines, in its business
judgment,
that the obligation to pay such additional amounts cannot be
avoided by
the use of reasonable measures available to it, other than
substituting
the obligor under the Notes or taking any action that would entail
a
material cost to the Company, and (C) the Company receives an
opinion
of independent counsel to the effect that an act taken by a
taxing
authority of the United
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<PAGE>
States results in a substantial probability that the Company will
or
may be required to pay the additional amounts described under
Section
4.02, and delivers to the Trustee a certificate, signed by a
duly
authorized officer, stating that based on such opinion the Company
is
entitled to redeem the Notes pursuant to their terms.
In the event the Company is entitled to redeem all or a
portion of the Notes pursuant to this
Section 3.02, the Company shall pay a
redemption price equal to 100% of the
principal amount of the Notes, together
with accrued and unpaid interest, if any,
to the redemption date.
Section 3.03. Notice of Optional Redemption; Selection of
Notes. In case the Company shall desire to
exercise the right to redeem all or,
as the case may be, any part of the Notes
pursuant to Section 3.01, it shall fix
a date for redemption and it or, at its
written request received by the Trustee
not fewer than forty-five (45) days prior
(or such shorter period of time as may
be acceptable to the Trustee) to the date
fixed for redemption, the Trustee in
the name of and at the expense of the
Company, shall mail or cause to be mailed
a notice of such redemption not fewer than
thirty (30) nor more than sixty (60)
days prior to the redemption date to each
holder of Notes so to be redeemed as a
whole or in part at its last address as the
same appears on the Note register;
provided that if the Company shall give
such notice, it shall give substantially
concurrent written notice of the redemption
date to the Trustee. Such mailing
shall be by first class mail. The notice,
if mailed in the manner herein
provided, shall be conclusively presumed to
have been duly given, whether or not
the holder receives such notice. In any
case, failure to give such notice by
mail or any defect in the notice to the
holder of any Note designated for
redemption as a whole or in part shall not
affect the validity of the
proceedings for the redemption of any other
Note. Concurrently with the mailing
of any such notice of redemption, the
Company shall issue a press release
announcing such redemption, the form and
content of which press release shall be
determined by the Company in its sole
discretion. The failure to issue any such
press release or any defect therein shall
not affect the validity of the
redemption notice or any of the proceedings
for the redemption of any Note
called for redemption.
Each such notice of redemption shall specify the aggregate
principal amount of Notes to be redeemed,
the CUSIP number or numbers of the
Notes being redeemed, the date fixed for
redemption (which shall be a Business
Day), the redemption price at which Notes
are to be redeemed, the place or
places of payment, that payment will be
made upon presentation and surrender of
such Notes, that interest accrued to the
date fixed for redemption will be paid
as specified in said notice, and that on
and after said date interest thereon or
on the portion thereof to be redeemed will
cease to accrue. If fewer than all
the Notes are to be redeemed, the notice of
redemption shall identify the Notes
to be redeemed (including CUSIP numbers, if
any). In case any Note is to be
redeemed in part only, the notice of
redemption shall state the portion of the
principal amount thereof to be redeemed and
shall state that, on and after the
redemption date, upon surrender of such
Note, a new Note or Notes in principal
amount equal to the unredeemed portion
thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this
Section 3.03, the Company will deposit with
the Trustee or with one or more paying
agents (or, if the Company is acting as
the paying agent, set aside, segregate and
hold in trust as provided in Section
4.16) an amount of money in immediately
available funds sufficient
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to redeem on the redemption date all the
Notes (or portions thereof) so called
for redemption at the appropriate
redemption price, together with accrued
interest to, but excluding, the redemption
date; provided that if such payment
is made on the redemption date it must be
received by the Trustee or paying
agent, as the case may be, by 10:00 a.m.
New York City time on such date. The
Company shall be entitled to retain any
interest, yield or gain on amounts
deposited with the Trustee or any paying
agent pursuant to this Section 3.03 in
excess of amounts required hereunder to pay
the redemption price and accrued
interest to, but excluding, the redemption
date. Whenever any Notes are to be
redeemed pursuant to Section 3.01, the
Company will give the Trustee written
notice in the form of an Officers'
Certificate not fewer than forty-five (45)
days (or such shorter period of time as may
be acceptable to the Trustee) prior
to the redemption date as to the aggregate
principal amount of Notes to be
redeemed.
If less than all of the outstanding Notes are to be redeemed,
the Trustee shall select the Notes or
portions thereof of the Global Note or the
Notes in certificated form to be redeemed
(in principal amounts of (euro)1,000
or multiples thereof) by lot, in compliance
with the requirements, as certified
to it by the Company, of the principal
national securities exchange on which the
Notes are listed or, if the Notes are not
listed on a national securities
exchange, on a pro rata basis, by lot or by
such other method as the Trustee in
its sole discretion shall deem fair and
appropriate; provided that no Notes of
(euro)1,000 in principal amount or less
shall be redeemed in part. The Notes (or
portions thereof) so selected shall be
deemed duly selected for redemption for
all purposes hereof.
Section 3.04. Payment of Notes Called for Redemption by the
Company. If notice of redemption has been
given as provided in Section 3.03, the
Notes or portion of Notes with respect to
which such notice has been given shall
become due and payable on the date fixed
for redemption and at the place or
places stated in such notice at the
applicable redemption price, together with
interest accrued to (but excluding) the
redemption date, and on and after said
date (unless the Company shall default in
the payment of such Notes at the
redemption price, together with interest
accrued to said date) interest on the
Notes or portion of Notes so called for
redemption shall cease to accrue and,
except as provided in Sections 7.06 and
12.06, to be entitled to any benefit or
security under this Indenture, and the
holders thereof shall have no right in
respect of such Notes except the right to
receive the redemption price thereof
and unpaid interest to (but excluding) the
redemption date. On presentation and
surrender of such Notes at a place of
payment in said notice specified, the said
Notes or the specified portions thereof
shall be paid and redeemed by the
Company at the applicable redemption price,
together with interest accrued
thereon to, but excluding, the redemption
date; provided that if the applicable
redemption date is an interest payment
date, the interest payable on such
interest payment date shall be payable to
the holders of record of such Notes on
the applicable record date instead of the
holders surrendering such Notes for
redemption on such date.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall
authenticate and make available for
delivery to the holder thereof, at the
expense of the Company, a new Note or
Notes, of authorized denominations, in
principal amount equal to the unredeemed
portion of the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem
any Notes or mail any notice of redemption
during the continuance of a default
in payment of interest or premium,
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if any, on the Notes. If any Note called
for redemption shall not be so paid
upon surrender thereof for redemption, the
principal and premium, if any, shall,
until paid or duly provided for, bear
interest from the redemption date at a
rate equal to 1% per annum plus the rate
borne by the Note (without duplication
of the 1% increase provided for under
Section 6.02) until the principal and
premium, if any, and interest shall have
been paid or duly provided for.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees that it will
duly and punctually pay or cause to be
paid the principal of and premium, if any
(including the redemption price upon
redemption pursuant to Article 3 or the
purchase price upon repurchase pursuant
to Article 4), and interest, on each of the
Notes at the places, at the
respective times and in the manner provided
herein and in the Notes.
Section 4.02. Obligation to Pay Additional Amounts.
(a) The Company will pay additional amounts to the beneficial
owner of any Note that is a non-United
States person in order to ensure that
every net payment on such Note will not be
less, due to payment of United States
withholding tax, than the amount then due
and payable. For this purpose, a "NET
PAYMENT" on a Note means a payment by the
Company or any paying agent, including
payment of principal and interest, after
deduction for any present or future
tax, assessment or other governmental
charge of the United States. These
additional amounts will constitute
additional interest on the Note.
(b) Notwithstanding the foregoing, the Company will not be
required to pay additional amounts, in any
of the circumstances described in
paragraphs (1) through (14) of this Section
4.02(b).
(1) Additional
amounts will not be pay
