EXHIBIT 4.1
Execution
Version
BIO-RAD LABORATORIES, INC.,
as Issuer
8.00% Senior Subordinated Notes due
2016
_______________
INDENTURE
Dated as of May 26, 2009
_______________
Wells Fargo Bank, National
Association,
as Trustee
SFDOCS01/271107.5
EXHIBIT 4.1
Execution
Version
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
2
Section 1.2
Other Definitions
2
Section 1.3
Incorporation by Reference of Trust
Indenture Act
2
Section 1.4
Rules of Construction
2
ARTICLE II
THE NOTES
Section 2.1
Form and Dating
2
Section 2.2
Execution and Authentication
2
Section 2.3
Registrar, Paying Agent and
Depositary
2
Section 2.4
Paying Agent to Hold Money in
Trust
2
Section 2.5
Holder Lists
2
Section 2.6
Transfer and Exchange
2
Section 2.7
Replacement Notes
2
Section 2.8
Outstanding Notes
2
Section 2.9
Treasury Notes
2
Section 2.10
Temporary Notes
2
Section 2.11
Cancellation.
2
Section 2.12
Defaulted Interest
2
Section 2.13
CUSIP Numbers
2
ARTICLE III
REDEMPTION
Section 3.1
Notices to Trustee
2
Section 3.2
Selection of Notes to Be
Redeemed
2
Section 3.3
Notice of Redemption
2
Section 3.4
Effect of Notice of Redemption
2
Section 3.5
Deposit of Redemption Price
2
Section 3.6
Notes Redeemed in Part
2
Section 3.7
Optional Redemption
2
SFDOCS01/271107.5
Page
ARTICLE IV
COVENANTS
Section 4.1
Payment of Notes
2
Section 4.2
Maintenance of Office or
Agency
2
Section 4.3
SEC Reports and Reports to
Holders
2
Section 4.4
Compliance Certificate
2
Section 4.5
Taxes
2
Section 4.6
Stay, Extension and Usury Laws
2
Section 4.7
Limitation on Incurrence of Additional
Indebtedness and
Disqualified Capital Stock
2
Section 4.8
Limitation on Liens
2
Section 4.9
Limitations on Restricted
Payments
2
Section 4.10
Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries
2
Section 4.11
Limitation on Transactions with
Affiliates
2
Section 4.12
Limitation on Sale of Assets and
Subsidiary Stock
2
Section 4.13
Repurchase of Notes at the Option of the
Holder upon a Change of
Control
2
Section 4.14
Limitation on Layering
Indebtedness
2
Section 4.15
Corporate Existence
2
Section 4.16
Covenant Suspension
2
ARTICLE V
SUCCESSORS
Section 5.1
Merger, Consolidation or Sale of
Assets
2
Section 5.2
Successor Corporation
Substituted
2
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1
Events of Default
2
Section 6.2
Acceleration
2
Section 6.3
Other Remedies
2
Section 6.4
Waiver of Past Defaults
2
Section 6.5
Control by Majority
2
Section 6.6
Limitation on Suits
2
Section 6.7
Rights of Holders of Notes to Receive
Payment
2
Section 6.8
Collection Suit by Trustee
2
Section 6.9
Trustee May File Proofs of
Claim
2
Section 6.10
Priorities
2
Section 6.11
Undertaking for Costs
2
SFDOCS01/271107.5
ii
Page
ARTICLE VII
TRUSTEE
Section 7.1
Duties of Trustee
2
Section 7.2
Rights of Trustee
2
Section 7.3
Individual Rights of Trustee
2
Section 7.4
Trustee’s Disclaimer
2
Section 7.5
Notice of Defaults Agreement
2
Section 7.6
Reports by Trustee to Holders of the
Notes
2
Section 7.7
Compensation and Indemnity
2
Section 7.8
Replacement of Trustee
2
Section 7.9
Successor Trustee by Merger,
etc.
2
Section 7.10
Eligibility; Disqualification
2
Section 7.11
Preferential Collection of Claims Against
Company
2
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Option to Effect Legal Defeasance or
Covenant Defeasance
2
Section 8.2
Legal Defeasance and Discharge
2
Section 8.3
Covenant Defeasance
2
Section 8.4
Conditions to Legal or Covenant
Defeasance
2
Section 8.5
Deposited Money and Government Securities
to Be Held in Trust; Other Miscellaneous Provisions
2
Section 8.6
Repayment to Company
2
Section 8.7
Reinstatement
2
Section 8.8
Satisfaction and Discharge
2
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1
Without Consent of Holders of
Notes
2
Section 9.2
With Consent of Holders of
Notes
2
Section 9.3
Compliance with Trust Indenture
Act
2
Section 9.4
Revocation and Effect of
Consents
2
Section 9.5
Notation on or Exchange of
Notes
2
Section 9.6
Trustee to Sign Amendments,
etc.
2
ARTICLE X
GUARANTEES
Section 10.1
Guarantees
2
Section 10.2
Execution and Delivery of
Guarantees
2
SFDOCS01/271107.5
iii
Page
Section 10.3
Guarantors May Consolidate, etc., on
Certain Terms
2
Section 10.4
Future Guarantors
2
Section 10.5
Release of Guarantors
2
Section 10.6
Limitation of Guarantor’s
Liability; Certain Bankruptcy Events
2
Section 10.7
Application of Certain Terms and
Provisions to the Guarantors
2
Section 10.8
Subordination of Guarantees
2
ARTICLE XI
SUBORDINATION
Section 11.1
Notes Subordinate to Senior
Debt
2
Section 11.2
No Payment on Notes in Certain
Circumstances
2
Section 11.3
Notes Subordinate to Prior Payment of All
Senior Debt on Dissolution, Liquidation or Reorganization
2
Section 11.4
Holders to Be Subrogated to Rights of
Holders of Senior Debt
2
Section 11.5
Obligations of the Company
Unconditional
2
Section 11.6
Trustee Entitled to Assume Payments Not
Prohibited in Absence of
Notice
2
Section 11.7
Application by Trustee of Assets
Deposited with It
2
Section 11.8
Subordination Rights Not Impaired by Acts
or Omissions of the
Company or Holders of Senior Debt
2
Section 11.9
Holders Authorize Trustee to Effectuate
Subordination of Notes
2
Section 11.10
Rights of Trustee to Hold Senior
Debt
2
Section 11.11
Article XI Not to Prevent Events of
Default
2
Section 11.12
No Fiduciary Duty of Trustee to Holders
of Senior Debt
2
Section 11.13
Notice by Company
2
ARTICLE XII
MISCELLANEOUS
Section 12.1
Trust Indenture Act Controls
2
Section 12.2
Notices
2
Section 12.3
Communication by Holders of Notes with
Other Holders of Notes
2
Section 12.4
Certificate and Opinion as to Conditions
Precedent
2
Section 12.5
Statements Required in Certificate or
Opinion
2
Section 12.6
Rules by Trustee and Agents
2
Section 12.7
No Personal Liability of Directors,
Officers, Employees and
Stockholders
2
Section 12.8
Governing Law
2
Section 12.9
No Adverse Interpretation of Other
Agreements
2
Section 12.10
Successors
2
Section 12.11
Severability
2
Section 12.12
Counterpart Originals
2
Section 12.13
Table of Contents, Headings,
etc.
2
SFDOCS01/271107.5
iv
Page
EXHIBIT A
FORM OF NOTE
A-1
EXHIBIT B
FORM OF CERTIFICATE OF
TRANSFER
B-1
EXHIBIT C
FORM OF CERTIFICATE OF
EXCHANGE
C-1
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL
ACCREDITED INVESTOR
D-1
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY
SUBSIDIARY GUARANTORS
E-1
SFDOCS01/271107.5
v
CROSS-REFERENCE TABLE*
|
|
|
TIA Section
|
Indenture Section
|
|
|
|
|
310(a)(1)
(a)(2)
(a)(3)
(a)(4)
(a)(5)
(b)
(c)
|
7.10
7.10
N.A.
N.A.
7.8;
7.10
7.8;
7.10; 12.2
N.A.
|
|
311(a)
(b)
(c)
|
7.11
7.11
N.A.
|
|
312(a)
(b)
(c)
|
2.5
12.3
12.3
|
|
313(a)
(b)(1)
(b)(2)
(c)
(d)
|
7.6
N.A.
7.6
7.6;
12.2
7.6
|
|
314(a)
(b)
(c)(1)
(c)(2)
(c)(3)
(d)
(e)
(f)
|
4.3;
4.4; 12.2
N.A.
12.4
12.4
N.A.
N.A.
12.5
N.A.
|
|
315(a)
(b)
(c)
(d)
(e)
|
7.1(b)
7.5;
12.2
7.1(a)
7.1(c)
6.11
|
|
316(a) (last sentence)
(a)(1)(A)
(a)(1)(B)
(a)(2)
(b)
|
2.9
6.5
6.4
N.A.
6.7
|
|
317(a)(1)
(a)(2)
(b)
|
6.8
6.9
2.4
|
|
318(a)
(c)
|
12.1
12.1
|
N.A. means not applicable
*
This Cross-Reference table shall not, for
any purpose, be deemed to be part of this Indenture.
SFDOCS01/271107.5
INDENTURE, dated as of May 26, 2009,
between Bio-Rad Laboratories, Inc., a Delaware corporation (the
“ Company ”), and Wells Fargo Bank, National
Association, a national banking association, as trustee (the
“ Trustee ”).
The Company and the Trustee agree as
follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the 8.00% Senior Subordinated Notes due
2016 (the “ Notes ”):
ARTICLE
I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section
1.1
Definitions
.
“ Accrued Bankruptcy
Interest ” means, with respect to any Indebtedness, all
interest accruing thereon after the filing of a petition by or
against the Company or any of its Subsidiaries under any Bankruptcy
Law, in accordance with and at the rate (including any rate
applicable upon any default or event of default, to the extent
lawful) specified in the documents evidencing or governing such
Indebtedness, whether or not the claim for such interest is allowed
as a claim after such filing in any proceeding under such
Bankruptcy Law.
“ Acquired Indebtedness
” means Indebtedness (including Disqualified Capital Stock)
of any Person existing at the time such Person becomes a Subsidiary
of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its
Subsidiaries.
“ Acquisition ” means
the purchase or other acquisition of any Person or all or
substantially all the assets of any Person by any other Person,
whether by purchase, merger, consolidation, or other transfer, and
whether or not for consideration.
“ Affiliate ” means
any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company. For
purposes of this definition, the term “control” means
the power to direct the management and policies of a Person,
directly or through one or more intermediaries, whether through the
ownership of voting securities, by contract, or otherwise;
provided that with respect to ownership interests in the
Company and its Subsidiaries, a Beneficial Owner of 10% or more of
the total voting power normally entitled to vote in the election of
directors, managers or trustees, as applicable, shall for such
purposes be deemed to constitute control.
“ Agent ” means any
Registrar, Paying Agent or co-registrar.
“ Applicable Premium ”
means, with respect to any Note on any Redemption Date, the excess
of:
(a)
the present value at such Redemption Date
of (A) the redemption price of the Note at September 15, 2013 (such
redemption price being stated in the table appearing in Section
3.7) plus (B) all required interest payments due on the Note
through September 15, 2013, computed using a discount rate equal to
the Treasury Rate as of such Redemption Date plus 75 basis points;
over
(b)
the principal amount of the
Note.
“ Applicable Procedures
” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures
of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange at the relevant time.
“ Average Life ”
means, as of the date of determination, with respect to any
security or instrument, the quotient obtained by dividing (a) the
sum of the products (i) of the number of years from the date of
determination to the date or dates of each successive scheduled
principal (or redemption) payment of such security or instrument
and (ii) the amount of each such respective principal (or
redemption) payment by (b) the sum of all such principal (or
redemption) payments.
“ Bankruptcy Code ”
means the United States Bankruptcy Code, codified at 11 U.S.C.
101-1330, as amended.
“ Beneficial Owner ”
or “ beneficial owner ” for purposes of the
definition of “Change of Control” and
“Affiliate” has the meaning attributed to it in Rules
13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a
“person” shall be deemed to have “beneficial
ownership” of all shares that any such Person has the right
to acquire, whether such right is exercisable immediately or only
after the passage of time.
“ Board of Directors ”
means, with respect to any Person, the board of directors of such
Person or any committee of the Board of Directors of such Person
authorized, with respect to any particular matter, to exercise the
power of the board of directors of such Person.
“ Broker-Dealer ”
means any broker-dealer that receives Exchange Notes for its own
account in the Exchange Offer in exchange for Notes that were
acquired by such broker-dealer as a result of market-making or
other trading activities.
“ Business Day ” means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close or a day
on which the Corporate Trust Office is obligated by law or
executive order to close.
“ Capital Contribution
” means any contribution to the equity of the Company for
which no consideration other than Qualified Capital Stock is
given.
“ Capital Stock ”
means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or
exchangeable Indebtedness that is not itself otherwise capital
stock), warrants, options, participations or other equivalents of
or interests (however designated) in stock issued by that
corporation.
“ Capitalized Lease
Obligations ” means, as to any Person, the obligations of
such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for
purposes of this definition, the amount of such obligations at any
date shall be the capitalized amount of such obligations at such
date, determined in accordance with GAAP.
“ Cash Equivalents ”
means:
(a) direct obligations maturing within
thirteen months from the date of the acquisition thereof issued or
fully guaranteed by the United States of America or any agency
thereof and backed by the full faith and credit of the United
States;
(b) direct obligations maturing within
thirteen months from the date of the acquisition thereof and issued
or fully guaranteed by any state or territory of the United States
of America which maintains a short term credit quality rating of at
least SP-1 or a long term rating of at least AA- by S&P (or the
equivalent rating by a nationally recognized statistical rating
organization);
(c) obligations of any municipal
governmental body or special assessment district within the U.S.
with a short term credit quality rating of at least SP-1 or long
term credit rating of at least AA- by S&P (or the equivalent
rating by a nationally recognized statistical rating organization)
maturing within thirteen months from the date of acquisition
thereof;
(d) obligations of any corporation who
maintains a short term credit quality rating of at least A-1 or a
senior long term credit rating of at least AA- by S&P (or the
equivalent rating by a nationally recognized statistical rating
organization) (corporate securities may include commercial paper,
corporate notes, medium term notes, deposit notes and floating rate
notes) maturing (or currently being called and thus subject to
redemption) within thirteen months from the date of acquisition
thereof;
(e) obligations or investments issued or
guaranteed by a financial institution who maintains a short term
credit quality rating of at least A-1 or a senior long term credit
quality rating of at least single-A by S&P (or the equivalent
rating by a nationally recognized statistical rating organization)
(including bankers acceptances and certificates of deposit)
maturing (or currently being called and thus subject to redemption)
within thirteen months from the date of acquisition
thereof;
(f) senior classes of pass-through
securities and mortgage-backed certificates registered under the
Securities Exchange Act of 1933, with a long term credit quality
rating of at least AA- by S&P (or the equivalent rating by a
nationally recognized statistical rating organization) maturing
within thirteen months from the date of acquisition
thereof;
(g) Public Securities Association
repurchase agreements, master notes or deposits with financial
institutions that maintain a short term credit quality rating of at
least A-1 or a senior long term credit quality rating of at least
AA- by S&P (or the equivalent rating by a nationally recognized
statistical rating organization) maturing within thirteen months
from the date of acquisition thereof;
(h) shares in open-ended money market
mutual funds, the underlying securities of which have a weighted
average maturity that is less than thirteen months, whose assets
maintain an average credit quality rating of at least single-A by
S&P (or the equivalent rating by a nationally recognized
statistical rating organization);
(i) auction rate securities with a long
term credit quality rating of AAA by S&P (or the equivalent
rating by a nationally recognized statistical rating organization)
or with a long term credit quality rating of at least AA and Aa2 by
S&P and Moody’s respectively (or the equivalent rating by
two nationally recognized statistical rating organizations) whose
scheduled auction resets are within thirteen months from the date
of acquisition thereof;
(j) demand deposit accounts maintained in
the ordinary course of business;
(k) securities issued or fully guaranteed
by any foreign government, the securities of which government are
rated at least A by S&P (or the equivalent rating by a
nationally recognized statistical rating organization) maturing
within thirteen months from the date of acquisition
thereof;
(l) managed funds whose assets have a
weighted average maturity that is less than thirteen months and
whose assets maintain an average credit quality rating of at least
single-A by S&P (or the equivalent rating by a nationally
recognized statistical rating organization); and
(m) for purposes of clause (a)(ii) of
Section 4.12 only, marketable securities or purchaser promissory
notes, in each case, of the purchaser or acquirer of the assets or
property subject to the applicable Asset Sale in an amount not
exceeding in the aggregate $15,000,000 outstanding at any one time
granted or issued to the Company pursuant to such
clause.
“ Change of Control ”
means:
(a)
any merger or consolidation of the
Company with or into any Person, in one transaction or a series of
related transactions, if, immediately after giving effect to such
transaction(s), either (i) any “person” or
“group” (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) (other than the Excluded Persons) is or
becomes the “beneficial owner,” directly or indirectly,
of more than 40% of the Voting Equity Interests of the
transferee(s) or surviving entity or entities, and the Excluded
Persons shall cease to own beneficially at least a greater
percentage of the Voting Equity Interests of the transferee(s) or
surviving entity or entities than such other “person”
or “group” or (ii) the Excluded Persons shall cease to
own beneficially a greater percentage of the Voting Equity
Interests of such transferee(s) or surviving entity or entities
than any other person or group,
(b)
any “person” or
“group” (other than the Excluded Persons) is or becomes
the “beneficial owner,” directly or indirectly, of more
than 40% of the Voting Equity Interests of the Company, and the
Excluded Persons shall cease to own beneficially at least a greater
percentage of the Voting Equity Interests of the Company than such
other “person” or “group,”
(c)
the sale, lease, transfer, conveyance or
other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially
all of the consolidated assets of the Company to any
“person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act),
(d)
the Continuing Directors cease for any
reason to constitute a majority of the Board of Directors of the
Company then in office, or
(e)
the Company adopts a plan of liquidation
or dissolution.
“ Clearstream ” means
Clearstream Bank, S.A., or its successors.
“ Consolidated Coverage
Ratio ” of any Person on any date of determination (the
“ Transaction Date ”) means the ratio, on a
pro forma basis, of:
(a)
the aggregate amount of Consolidated
EBITDA of such Person (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of)
for the Reference Period to
(b)
the aggregate Consolidated Fixed Charges
of such Person (exclusive of amounts attributable to operations and
businesses permanently discontinued or disposed of, but only to the
extent that the obligations giving rise to such Consolidated Fixed
Charges would no longer be obligations contributing to such
Person’s Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period;
provided that for purposes of such calculation:
(i)
Acquisitions or dispositions which
occurred during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date shall be assumed to
have occurred on the first day of the Reference Period,
(ii)
transactions giving rise to the need to
calculate the Consolidated Coverage Ratio shall be assumed to have
occurred on the first day of the Reference Period,
(iii)
the incurrence of any Indebtedness
(including issuance of any Disqualified Capital Stock) during the
Reference Period or subsequent to the Reference Period and on or
prior to the Transaction Date (and the application of the proceeds
therefrom to the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the first day of
the Reference Period, and
(iv)
the Consolidated Fixed Charges of such
Person attributable to interest on any Indebtedness or dividends on
any Disqualified Capital Stock bearing a floating interest (or
dividend) rate shall be computed on a pro forma basis as if
the average rate in effect from the beginning of the Reference
Period to the Transaction Date had been the applicable rate for the
entire period, unless such Person or any of its Subsidiaries is a
party to an Interest Swap or Hedging Obligation (which shall remain
in effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether higher
or lower) shall be used.
“ Consolidated EBITDA
” means, with respect to any Person, for any period, the
Consolidated Net Income of such Person for such period adjusted to
add thereto (to the extent deducted from net revenues in
determining Consolidated Net Income), without duplication, the sum
of:
(a)
Consolidated income tax
expense,
(b)
Consolidated depreciation and
amortization expense,
(c)
Consolidated Fixed Charges,
and
(d)
all other non-cash charges (excluding any
such non-cash charge to the extent that it represents an accrual of
or reserve for cash expenditures in any future period),
less the amount of all cash payments made
by such Person or any of its Subsidiaries during such period to the
extent such payments relate to non-cash charges that were added
back in determining Consolidated EBITDA for such period or any
prior period; provided that consolidated income tax expense,
depreciation and amortization and Consolidated Fixed Charges of a
Subsidiary (i) that is a less than Wholly Owned Subsidiary shall
only be added to the extent and in the same proportions that the
net income of such Subsidiary was included in the calculation of
Consolidated Net Income of such Person and (ii) shall only be added
to the extent and in the same proportions that the Consolidated
EBITDA of such Subsidiary is permitted to be paid or distributed as
a dividend, advance, loan or other distribution to such
Person.
“ Consolidated Fixed Charges
” of any Person means, for any period, the aggregate amount
(without duplication and determined in each case in accordance with
GAAP) of:
(a)
interest expensed or capitalized, paid,
accrued, or scheduled to be paid or accrued (including, in
accordance with the following sentence, interest attributable to
Capitalized Lease Obligations) of such Person and its Consolidated
Subsidiaries during such period, including (i) original issue
discount and noncash interest payments or accruals on any
Indebtedness, (ii) the interest portion of all deferred payment
obligations, and (iii) all commissions, discounts and other fees
and charges owed with respect to banker’s acceptances and
letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to
such period, and
(b)
the amount of dividends accrued or
payable (or guaranteed) by such Person or any of its Consolidated
Subsidiaries in respect of Preferred Stock (other than by
Subsidiaries of such Person to such Person or such Person’s
Wholly Owned Subsidiaries).
For purposes of this definition, (x)
interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined in good faith by
such Person to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guarantee by
such Person or a Subsidiary of such Person of an obligation of
another Person shall be deemed to be the interest expense
attributable to the Indebtedness guaranteed.
“ Consolidated Net Income
” means, with respect to any Person for any period, the net
income (or loss) of such Person and its Consolidated Subsidiaries
(determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in
computing such net income (or loss) and without
duplication):
(a)
all gains or losses which are
extraordinary (as determined in accordance with GAAP) (including
any gain from the sale or other disposition of assets outside the
ordinary course of business or from the issuance or sale of any
capital stock),
(b)
the net income, if positive, of any
Person, other than a Consolidated Subsidiary, in which such Person
or any of its Consolidated Subsidiaries has an interest, except to
the extent of the amount of any dividends or distributions actually
paid in cash to such Person or a Consolidated Subsidiary of such
Person during such period, but in any case not in excess of such
Person’s pro rata share of such Person’s net income for
such period,
(c)
the net income, if positive, of any of
such Person’s Consolidated Subsidiaries to the extent that
the declaration or payment of dividends or similar distributions is
not at the time permitted by operation of the terms of its charter
or bylaws or any other agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary, and
(d)
the net income of, and all dividends and
distributions from, any Unrestricted Subsidiary.
“ Consolidated Subsidiary
” means, for any Person, each Subsidiary of such Person
(whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial
statement reporting purposes with the financial statements of such
Person in accordance with GAAP.
“ Consolidation ”
means the consolidation of the accounts of the Company with the
accounts of its Subsidiaries, all in accordance with GAAP;
provided that “consolidation” will not include
consolidation of the accounts of any Unrestricted Subsidiary with
the accounts of the Company. The term
“consolidated” has a correlative meaning to the
foregoing.
“ Continuing Director
” means during any period of 12 consecutive months after the
Issue Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Company (together
with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Company
was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or
whose election or nomination for election was previously so
approved, including new directors designated in or provided for in
an agreement regarding the merger, consolidation or sale, transfer
or other conveyance, of all or substantially all of the assets of
the Company, if such agreement was approved by a vote of such
majority of directors).
“ Corporate Trust Office
” shall be at the address of the Trustee specified in Section
12.2 or such other address as to which the Trustee may give notice
to the Company; provided that for purposes of complying with
Section 2.3 such address shall be Wells Fargo Bank, National
Association, 707 Wilshire Boulevard., 17th Floor, Los Angeles,
California 90017, Attention: Maddy Hall. All notices by
the Company sent to the Trustee at its Corporate Trust Office in
The City of New York shall also be sent to the Trustee at the
address set forth in Section 12.2.
“ Credit Agreement ”
means that certain Credit Agreement, dated as of June 21, 2005, by
and among the Company, certain financial institutions, JPMorgan
Chase Bank, N.A., as administrative agent, Wells Fargo Bank, N.A.
and Union Bank of California, N.A., as syndication agents, and ABN
Amro Bank N.V. and BNP Paribas, as documentation agents, as amended
from time to time, including any related notes, guarantees,
collateral documents, instruments and agreements executed in
connection therewith, as such credit agreement and/or related
documents may be amended, restated, supplemented, renewed,
refunded, replaced (whether upon or after termination or
otherwise), refinanced (including by means of sales of debt
securities to institutional investors), modified, substituted or
otherwise restructured (including, but not limited to, the
inclusion of additional borrowers thereunder), in whole or in part
from time to time whether or not with the same agent, trustee,
representative lenders or holders and irrespective of any changes
in the terms and conditions thereof. Without limiting the
generality of the foregoing, the term “Credit
Agreement” shall include agreements in respect of Interest
Swap and Hedging Obligations with lenders party to the Credit
Agreement or their affiliates.
“ Credit Facilities ”
means one or more debt facilities (including, without limitation,
the Credit Agreement) or commercial paper facilities, in each case
with banks, investment banks, insurance companies, mutual funds or
other lenders providing for revolving credit loans, term loans,
bankers acceptances, receivables financing (including through the
sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables) or
letters of credit, in each case, as amended, restated,
supplemented, renewed, replaced (whether upon or after termination
or otherwise), refinanced (including by means of sales of debt
securities to institutional investors), modified, substituted or
otherwise restructured (including, but not limited to, the
inclusion of additional borrowers thereunder), in whole or in part
and from time to time. Without limiting the generality of the
foregoing, the term “Credit Facilities” shall include
agreements in respect of Interest Swap and Hedging Obligations with
lenders party to the Credit Facilities or their
affiliates.
“ Default ” means any
event that is or with the passage of time or the giving of notice
or both would be an Event of Default.
“ Definitive Note ”
means one or more certificated Notes registered in the name of the
Holder thereof and issued in accordance with Section 2.6, in the
form of Exhibit A hereto except that such Note shall not
include the information called for by footnotes 3, 4 and 5
thereof.
“ Depositary ” means,
with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.3 as the Depositary
with respect to the Notes, until a successor will have been
appointed and become such pursuant to the applicable provisions of
this Indenture, and thereafter “Depositary” will mean
or include such successor.
“ Designated Senior Debt
” means Senior Debt from time to time outstanding under the
Credit Agreement.
“ Disqualified Capital Stock
” means, with respect to any Person, any Equity Interest of
such Person that, by its terms or by the terms of any security into
which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time or both would be,
required to be redeemed or repurchased (including at the option of
the holder thereof) by such Person or any of its Subsidiaries, in
whole or in part, on or prior to the Stated Maturity of the Notes;
provided , however , that any Equity Interests that
would not constitute Disqualified Capital Stock but for provisions
thereof giving holders thereof (or the holders of any security into
or for which such Equity Interests are convertible, exchangeable or
exercisable) the right to require the Company to redeem such Equity
Interests upon the occurrence of a change in control occurring
prior to the Stated Maturity of the Notes shall not constitute
Disqualified Capital Stock if the change in control provisions
applicable to such Equity Interests are no more favorable to such
holders than the provisions of Section 4.13 and such Equity
Interests specifically provide that the Company will not redeem any
such Equity Interests pursuant to such provisions prior to the
Company’s purchase of the Notes as required pursuant to the
provisions of Section 4.13.
“ Distribution Compliance
Period ” means the 40-day restricted period as defined in
Regulation S.
“ Domestic Subsidiary
” means any of the Company’s Subsidiaries, other than
Foreign Subsidiaries.
“ Equity Interests ”
means Capital Stock or partnership, participation or membership
interests and all warrants, options or other rights to acquire
Capital Stock or partnership, participation or membership interests
(but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock or partnership, participation or
membership interests).
“ Euroclear ” means
Euroclear Bank S.A./N.V., or its successor.
“ Event of Loss ”
means, with respect to any property or asset, any (a) loss,
destruction or damage of such property or asset or (b) any
condemnation, seizure or taking, by exercise of the power of
eminent domain or otherwise, of such property or asset, or
confiscation or requisition of the use of such property or
asset.
“ Exchange Act ” means
the Securities Exchange Act of 1934, as amended.
“ Exchange Notes ”
means Notes issued pursuant to an Exchange Offer.
“ Exchange Offer ”
shall have the meaning set forth in the Registration Rights
Agreement.
“ Exchange Offer Registration
Statement ” shall have the meaning set forth in the
Registration Rights Agreement.
“ Excluded Persons ”
means (a) David Schwartz, Alice Schwartz, Norman D. Schwartz
and Steven Schwartz, (b) any spouse, immediate family member,
relative or lineal descendant of any person described in clause
(a), (c) any trust in which any one or more of the persons
described in clause (a) or (b) holds all of the beneficial
interests, and (d) any Affiliate of the persons described in clause
(a) or (b).
“ Exempted Affiliate
Transaction ” means:
(a)
customary employee compensation and
benefit arrangements and indemnification agreements, in each case,
approved by a majority of independent (as to such transactions)
members of the Board of Directors of the Company,
(b)
Restricted Payments, other than
Investments, permitted under Section 4.9,
(c)
transactions solely between the Company
and any of its Subsidiaries, or solely among its
Subsidiaries,
(d)
payment of reasonable directors’
fees to persons who are not otherwise Affiliates of the
Company,
(e)
sales of Equity Interests (other than
Disqualified Capital Stock) to Affiliates of the
Company,
(f)
performance of all agreements in
existence on the Issue Date and any modification thereto or any
transaction contemplated thereby in any replacement agreement
therefor so long as such modification or replacement is not more
disadvantageous to the Company, any of its Subsidiaries or the
Holders in any material respect than the original agreement as in
effect on the Issue Date, and
(g)
transactions with suppliers or vendors
pursuant to purchase orders executed in the ordinary course of
business consistent with past practice.
“ Existing Indebtedness
” means Indebtedness of the Company and its Subsidiaries
(other than Indebtedness under the Credit Facilities) in existence
on the Issue Date, including the Existing Notes, reduced to the
extent such amounts are repaid, refinanced or retired.
“Existing
Notes” means the
Company’s 7.50% Senior Subordinated Notes due 2013 and 6.125%
Senior Subordinated Notes due 2014.
“ fair market value ”
means, with respect to any asset or property, the price which could
be negotiated in an arm’s-length, free market transaction,
for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete
the transaction. Fair market value shall be determined by the
Company’s Board of Directors acting reasonably and in good
faith and shall be evidenced by a board resolution of the
Company’s Board of Directors delivered to the Trustee;
provided , however , that the fair market value of
the consideration received in an Asset Sale for which the total
consideration received is less than $1,000,000 may be determined by
senior management of the Company acting reasonably and in good
faith and evidenced by an Officers’ Certificate delivered to
the Trustee.
“ Foreign Subsidiary ”
means any Subsidiary of the Company which (a) is not organized
under the laws of the United States, any state thereof or the
District of Columbia and (b) conducts substantially all of its
business operations outside the United States of
America.
“ Foreign Subsidiary Credit
Agreement ” means any credit agreement or similar
instrument, including, without limitation, working capital or
equipment purchase lines of credit, entered into by any Foreign
Subsidiary governing the terms of a bona fide borrowing by such
Foreign Subsidiary from (a) a third-party financial institution
that is primarily engaged in the business of commercial banking or
(b) a vendor or other provider of financial accommodations in
connection with the purchase of equipment, in either case for valid
business purposes, including any related notes, guarantees,
collateral documents, instruments and agreements executed in
connection therewith, as such may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time to
time whether or not with the same agent, trustee, representative
lenders or holders, and, subject to the proviso in clause (iii) of
the next sentence, irrespective of any changes in the terms and
conditions thereof. Without limiting the generality of the
foregoing, the term “Foreign Subsidiary Credit
Agreement” shall include agreements in respect of Interest
Swap and Hedging Obligations with lenders party to a Foreign
Subsidiary Credit Agreement and shall also include any amendment,
amendment and restatement, renewal, extension, restructuring,
supplement or modification to any Foreign Subsidiary Credit
Agreement and all refundings, refinancings and replacements of any
Foreign Subsidiary Credit Agreement, including any
agreement:
(i)
extending the maturity of any
Indebtedness incurred thereunder or contemplated
thereby,
(ii)
adding or deleting borrowers or
guarantors thereunder, so long as borrowers and issuers include one
or more of the Foreign Subsidiaries and their respective successors
and assigns,
(iii)
increasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder;
provided that on the date such Indebtedness is incurred its
incurrence would not be prohibited by this Indenture, or
(iv)
otherwise altering the terms and
conditions thereof in a manner not prohibited by the terms of this
Indenture.
“ GAAP ” means United
States generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as approved
by a significant segment of the accounting profession in the United
States as in effect from time to time.
“ Global Note Legend ”
means the legend set forth in Section 2.6(g)(ii), which is required
to be placed on all Global Notes issued under this
Indenture.
“ Global Notes ” means
one or more Notes in the form of Exhibit A hereto that
includes the information referred to in footnotes 3, 4 and 6 to the
form of Note, attached hereto as Exhibit A , issued
under this Indenture, that is deposited with or on behalf of and
registered in the name of the Depositary or its nominee.
“ governmental authority
” means any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, province or any
city or other political subdivision or otherwise and whether now or
hereafter in existence, or any officer or official thereof, and any
maritime authority.
“ Guarantee ” means a
guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect,
in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of
any Indebtedness. When used with respect to the Notes, a
“Guarantee” means a guarantee by the Guarantors of all
or any part of the Notes, in accordance with Article X.
“ Guarantor ” means
each of the Subsidiaries of the Company that in the future executes
a Guarantee pursuant to and in accordance with the requirements of
this Indenture in which such Subsidiary unconditionally guarantees
on a senior subordinated basis the obligations of the Company under
the Notes and this Indenture; provided that any Person
constituting a Guarantor as described above shall cease to
constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.
“ Guarantor Senior Debt
” means, with respect to any Guarantor, Indebtedness
(including any monetary obligation in respect of the Credit
Facilities and any Accrued Bankruptcy Interest incurred pursuant to
the Credit Facilities in any proceeding under Bankruptcy Law) of
such Guarantor arising under the Credit Facilities or its guarantee
thereof or that is permitted to be incurred under the terms of this
Indenture unless the terms of the instrument creating or evidencing
such Indebtedness expressly provide that it is on a parity with or
subordinated in right of payment to its Guarantee of the Notes;
provided that in no event shall Guarantor Senior Debt
include (1) Indebtedness to the Company, any of its Subsidiaries or
any officer, director or employee of such Guarantor, the Company or
any of its Subsidiaries or any other Affiliate, (2) Indebtedness
incurred in violation of the terms of this Indenture, (3) trade
payables or other Indebtedness to trade creditors, (4) Disqualified
Capital Stock, (5) Capitalized Lease Obligations, (6) any liability
for taxes owed or owing by such Guarantor, and (7) such
Guarantor’s guarantee of the Existing Notes, if
any.
“ Holder ” means a
Person in whose name a Note is registered on the Registrar’s
books.
“ Indebtedness ” of
any Person means, without duplication,
(a)
all liabilities and obligations,
contingent or otherwise, of such Person, to the extent such
liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such Person in accordance with
GAAP
(i)
in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof),
(ii)
evidenced by bonds, notes, debentures or
similar instruments,
(iii)
representing the balance deferred and
unpaid of the purchase price of any property or services, except
(other than accounts payable or other obligations to trade
creditors which have remained unpaid for greater than 90 days past
their original due date) those incurred in the ordinary course of
its business that would constitute ordinarily a trade payable to
trade creditors,
(iv)
evidenced by bankers’ acceptances
or similar instruments issued or accepted by banks, or
(v)
relating to any Capitalized Lease
Obligation,
(b)
all liabilities and obligations,
contingent or otherwise, of such Person evidenced by a letter of
credit or a reimbursement obligation of such Person with respect to
any letter of credit,
(c)
all net obligations of such Person under
interest swap obligations, interest cap agreements, commodity
agreements, currency agreements and other similar hedging
arrangements, obligations or agreements,
(d)
all liabilities and obligations of others
of the kind described in the preceding clause (a), (b) or (c) that
such Person has guaranteed or provided credit support or that is
otherwise its legal liability or which are secured by any assets or
property of such Person,
(e)
any and all deferrals, renewals,
extensions, refinancing and refundings (whether direct or indirect)
of, or amendments, modifications or supplements to, any liability
of the kind described in any of the preceding clauses (a), (b),
(c), (d), or this clause (e), whether or not between or among the
same parties,
(f)
all Disqualified Capital Stock of such
Person (measured at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued and unpaid dividends),
and
(g)
all obligations to purchase, redeem or
acquire any third-party Equity Interests.
For purposes hereof, the “
maximum fixed repurchase price ” of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good
faith by the board of directors of the issuer (or managing general
partner of the issuer) of such Disqualified Capital
Stock.
The amount of any Indebtedness
outstanding as of any date shall be (x) the accreted value thereof,
in the case of any Indebtedness issued with original issue
discount, but the accretion of original issue discount in
accordance with the original terms of Indebtedness issued with an
original issue discount will not be deemed to be an incurrence and
(y) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any
other Indebtedness.
“ Indenture ” means
this Indenture, as amended or supplemented from time to time in
accordance with the terms hereof.
“ Indirect Participant
” means an entity that, with respect to DTC, clears through
or maintains a direct or indirect, custodial relationship with a
Participant.
“ Initial Purchaser ”
means the Purchaser set forth on Schedule A to the Purchase
Agreement, dated May 19, 2009, between the Company and such
Purchaser relating to the initial purchase and sale of the
Notes.
“ Institutional Accredited
Investor ” means an institution that is an
“accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, who is not also a
QIB.
“ Interest Payment Date
” means the stated due date of an installment of interest on
the Notes.
“ Interest Swap and Hedging
Obligation ” means any obligation of any Person pursuant
to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement
designed to protect against fluctuations in interest rates or
currency values (and not for speculative purposes), including,
without limitation, any arrangement whereby, directly or
indirectly, such Person is entitled to receive from time to time
periodic payments calculated by applying either a fixed or floating
rate of interest on a stated notional amount in exchange for
periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional
amount.
“ Investment ” by any
Person in any other Person means (without duplication):
(a)
the acquisition (whether by purchase,
merger, consolidation or otherwise) by such Person (whether for
cash, property, services, securities or otherwise) of Equity
Interests, bonds, notes, debentures, partnership or other ownership
interests or other securities of such other Person or any agreement
to make any such acquisition;
(b)
the making by such Person of any deposit
with, or advance, loan or other extension of credit to, such other
Person (including the purchase of property from another Person
subject to an understanding or agreement, contingent or otherwise,
to resell such property to such other Person) or any written
commitment to make any such advance, loan or extension (but
excluding accounts receivable, endorsements for collection or
deposits arising in the ordinary course of business) within one
year;
(c)
other than guarantees of Indebtedness of
the Company or any Subsidiary to the extent permitted by Section
4.7, the entering into by such Person of any guarantee of, or other
credit support or contingent obligation with respect to,
Indebtedness or other liability of such other Person;
(d)
the making of any capital contribution
(which shall be deemed to include payment of consideration in
excess of fair market value of any assets received) by such Person
to such other Person; and
(e)
the designation by the Board of Directors
of the Company of any Person to be an Unrestricted
Subsidiary.
The Company shall be deemed to make an
Investment in an amount equal to the fair market value of the
Company’s or its Subsidiaries’ proportionate interest
in such Subsidiary on such date (or, if neither the Company nor any
of its Subsidiaries has theretofore made an Investment in such
Subsidiary, in an amount equal to the Investments being made), at
the time that such Subsidiary is designated an Unrestricted
Subsidiary, and any property transferred to an Unrestricted
Subsidiary from the Company or a Subsidiary of the Company shall be
deemed an Investment valued at its fair market value at the time of
such transfer. The fair market value of each Investment shall
be measured at the time made or returned, as applicable.
“ Investment Grade Rating
” means (1) with respect to S&P, any of the rating
categories from and including AAA to and including BBB- and (2)
with respect to Moody’s, any of the rating categories from
and including Aaa to and including Baa3.
“ Issue Date ” means
the date of first issuance of the Notes under this
Indenture.
“ Junior Security ”
means any Qualified Capital Stock and any Indebtedness of the
Company or a Subsidiary, as applicable, that is contractually
subordinated in right of payment to Senior Debt at least to the
same extent as the Notes, and has no scheduled installment of
principal due, by redemption, sinking fund payment or otherwise, on
or prior to the Stated Maturity of the Notes; provided that
in the case of subordination in respect of Designated Senior Debt,
“Junior Security” shall mean any Qualified Capital
Stock and any Indebtedness of the Company or the Subsidiary
that:
(a)
has a final maturity date occurring after
the final maturity date of all Designated Senior Debt on the date
of issuance of such Qualified Capital Stock or
Indebtedness,
(b)
is unsecured,
(c)
has an Average Life longer than the
security for which such Qualified Capital Stock or Indebtedness is
being exchanged, and
(d)
by its terms or by law is subordinated to
Designated Senior Debt on the date of issuance of such Qualified
Capital Stock or Indebtedness at least to the same extent as the
Notes.
“ Lien ” means any
mortgage, charge, pledge, lien (statutory or otherwise), privilege,
security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
“ Liquidated Damages ”
means all Special Interest (as defined in the Registration Rights
Agreement) then owing pursuant to the Registration Rights
Agreement.
“ Material Domestic
Subsidiary ” means any Domestic Subsidiary that is a
Significant Subsidiary.
“ Moody’s ”
means Moody’s Investors Service, Inc., and its
successors.
“ Net Cash Proceeds ”
means the aggregate amount of cash or Cash Equivalents received by
the Company in the case of a sale of Qualified Capital Stock or a
Capital Contribution and by the Company and its Subsidiaries in
respect of an Asset Sale plus, in the case of an issuance of
Qualified Capital Stock upon any exercise, exchange or conversion
of securities of the Company (including options, warrants, rights
and convertible or exchangeable debt) that were issued for cash on
or after the Issue Date, the amount of cash originally received by
the Company upon the issuance of such securities (including
options, warrants, rights and convertible or exchangeable debt)
less, in each case, the sum of all payments, fees, commissions and
(in the case of Asset Sales, reasonable and customary), expenses
(including, without limitation, the fees and expenses of legal
counsel and investment banking fees and expenses) incurred in
connection with such Asset Sale, sale of Qualified Capital Stock or
Capital Contribution, and, in the case of an Asset Sale only, less
the amount (estimated reasonably and in good faith by the Company)
of income, franchise, sales and other applicable taxes required to
be paid by the Company or any of its Subsidiaries in connection
with such Asset Sale in the taxable year that such sale is
consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax
liability resulting from any available operating losses and net
operating loss carryovers, tax credits and tax credit
carryforwards, and similar tax attributes.
“ Non-Recourse Indebtedness
” means Indebtedness of a Person as to which neither the
Company nor any Subsidiary provides any guarantee, collateral or
other credit support of any kind whatsoever.
“ Notes Custodian ”
means the Trustee, as custodian with respect to the Notes in global
form, or any successor entity thereto.
“ Obligation ” means
any principal, premium or interest payment, or monetary penalty, or
damages, due by the Company or any Guarantor under the terms of the
Notes or this Indenture, including any Liquidated Damages due
pursuant to the terms of the Registration Rights
Agreement.
“ Officer ” means,
with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary, any Assistant Secretary or any Vice
President of such Person.
“ Officers’
Certificate ” means an officers’ certificate signed
by two Officers to be delivered upon the occurrence of certain
events as set forth in this Indenture, that meets the requirements
of Section 12.5 hereof.
“ 144A Global Note ”
means one or more Global Notes bearing the Private Placement Legend
that will be issued in an aggregate amount of denominations equal
in total to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.
“ Opinion of Counsel ”
means an opinion from legal counsel who is reasonably acceptable to
the Trustee that meets the requirements of Sections 12.4 and 12.5.
The counsel may be an employee of or counsel to the Company
or any Subsidiary of the Company.
“ Participant ” means,
with respect to the Depositary, Euroclear or Clearstream, a Person
who has an account with the Depositary, Euroclear or Clearstream,
respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
“ Permitted Investment
” means:
(a)
any Investment in the Company or any
Subsidiary of the Company or in any Person that immediately after
giving effect to such Investment becomes a Subsidiary of the
Company;
(b)
any Investment in Cash
Equivalents;
(c)
intercompany notes to the extent
permitted under Section 4.7;
(d)
additional Investments in that certain
public German company in which the Company has an Investment on the
Issue Date, in an aggregate amount made after the Issue Date not to
exceed $15,000,000;
(e)
other Investments in any Person or
Persons; provided that after giving pro forma effect
to each such Investment, the aggregate amount of all such
Investments made on and after the Issue Date pursuant to this
clause (e) that are outstanding (after giving effect to any such
Investments that are returned to the Company or any Subsidiary of
the Company that made such prior Investment, without restriction,
in cash on or prior to the date of any such calculation, but only
up to the amount of the Investment made under this clause (e) in
such Person) at any time does not in the aggregate exceed
$35,000,000 (measured by the value attributed to the Investment at
the time made);
(f)
any Investment made as a result of the
receipt of non-cash consideration (other than Equity Interests)
from an Asset Sale that complies with Section 4.12;
(g)
any acquisition of assets solely in
exchange for the issuance of Qualified Capital Stock of the
Company;
(h)
any Investment in connection with
Interest Swap and Hedging Obligations otherwise permitted under
this Indenture; and
(i)
any Investment received (i) in
satisfaction of judgments or (ii) as payment on a claim made in
connection with any bankruptcy, liquidation, receivership or other
insolvency proceeding.
“ Permitted Liens ”
means:
(a)
Liens existing on the Issue
Date;
(b)
Liens imposed by governmental authorities
for taxes, assessments or other charges not yet subject to penalty
or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are
maintained on the books and records of the Company in accordance
with GAAP;
(c)
statutory liens of carriers,
warehousemen, mechanics, materialmen, landlords, repairmen or other
like Liens arising by operation of law in the ordinary course of
business; provided that (i) the underlying obligations are
not overdue for a period of more than 30 days, or (ii) such Liens
are being contested in good faith and by appropriate proceedings
and adequate reserves with respect thereto are maintained on the
books of the Company in accordance with GAAP;
(d)
Liens securing the Notes, Additional
Notes (to the extent issued in accordance with this Indenture) and
the Exchange Notes;
(e)
Liens securing Indebtedness of a Person
existing at the time such Person becomes a Subsidiary of the
Company or is merged with or into the Company or one of its
Subsidiaries or Liens securing Indebtedness incurred in connection
with an Acquisition; provided that such Liens were in
existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do
not extend to any other assets;
(f)
Liens arising from Purchase Money
Indebtedness permitted to be incurred pursuant to this Indenture;
provided that such Liens relate solely to the property which
is subject to such Purchase Money Indebtedness;
(g)
Liens arising from precautionary Uniform
Commercial Code financing statement filings regarding operating
leases entered into by the Company or any of its Subsidiaries in
the ordinary course of business;
(h)
Liens securing Refinancing Indebtedness
incurred to refinance any Indebtedness that was previously so
secured in a manner no more adverse to the Holders than the terms
of the Liens securing such refinanced Indebtedness; provided
that the Indebtedness secured is not increased and the Lien is not
extended to any additional assets or property that would not have
been security for the Indebtedness refinanced;
(i)
Liens securing (a) Indebtedness under the
Credit Facilities, (b) other Senior Debt or Guarantor Senior Debt
or (c) Capitalized Lease Obligations, in each case, incurred in
accordance with the terms of this Indenture;
(j)
Liens securing Indebtedness of any
Foreign Subsidiary incurred in accordance with the terms of this
Indenture;
(k)
Liens in favor of the Company or any
Guarantor;
(l)
Liens securing reimbursement obligations
with respect to commercial letters of credit which solely encumber
documents and other property relating to such letters of credit and
products and proceeds thereof; and
(m)
Liens on the Equity Interests of
Unrestricted Subsidiaries securing obligations of Unrestricted
Subsidiaries to the extent permitted by the terms of this
Indenture.
“ Person ” or “
person ” means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership,
limited liability partnership, unincorporated association,
governmental regulatory entity, country, state or political
subdivision thereof, trust, municipality or other
entity.
“ Preferred Stock ”
means any Equity Interest of any class or classes of a Person
(however designated) which is preferred as to payments of
dividends, or as to distributions upon any liquidation or
dissolution, over Equity Interests of any other class of such
Person.
“ Private Placement Legend
” means the legend set forth in Section 2.6(g)(i) to be
placed on all Notes issued under this Indenture except where
specifically stated otherwise by the provisions of this
Indenture.
“ Pro forma ” or
“ pro forma ” shall have the meaning set
forth in Regulation S-X of the Securities Act, unless otherwise
specifically stated herein.
“ Purchase Money
Indebtedness ” of any Person means any Indebtedness of
such Person to any seller or other Person incurred solely to
finance the acquisition (including in the case of a Capitalized
Lease Obligation, the lease), construction, installation or
improvement of any after acquired real or personal tangible
property which, is directly related to a Related Business of the
Company and which is incurred concurrently with (or within 180 days
following) such acquisition, construction, installation or
improvement and is secured only by the assets so
financed.
“ QIB ” means a
“qualified institutional buyer” as defined in Rule
144A.
“ Qualified Capital Stock
” means any of the Capital Stock of the Company that is not
Disqualified Capital Stock.
“ Qualified Exchange ”
means:
(a)
any legal defeasance, redemption,
retirement, repurchase or other acquisition of Capital Stock of the
Company or Indebtedness of the Company issued on or after the Issue
Date with the Net Cash Proceeds received by the Company from the
substantially concurrent sale of Qualified Capital Stock of the
Company or, to the extent used to retire the Indebtedness of the
Company (other than Disqualified Capital Stock) issued on or after
the Issue Date, Subordinated Indebtedness of the
Company;
(b)
any issuance of Qualified Capital Stock
of the Company in exchange for any of the Capital Stock of the
Company or Indebtedness issued on or after the Issue Date;
or
(c)
any exchange of Subordinated Indebtedness
of the Company for Subordinated Indebtedness of the Company issued
on or after the Issue Date.
“ Rating Agency ”
means each of (a) S&P and (b) Moody’s.
“ Record Date ” means
a Record Date specified in the Notes, whether or not such date is a
Business Day.
“ Reference Period ,”
with regard to any Person, means the four full fiscal quarters (or
such lesser period during which such Person has been in existence)
ended immediately preceding any date upon which any determination
is to be made pursuant to the terms of the Notes or this
Indenture.
“ Refinancing Indebtedness
” means Indebtedness or Disqualified Capital Stock
(a)
issued in exchange for, or the proceeds
from the issuance and sale of which, which are applied within 45
days of such issuance and sale to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in
part, or
(b)
constituting an amendment, modification
or supplement to, or a deferral or renewal of
(clauses (a) and (b) above, collectively,
a “ Refinancing ” (and “ Refinance
” and “ Refinanced ” shall have
correlative meanings)) any Indebtedness (including Disqualified
Capital Stock) in a principal amount or, in the case of
Disqualified Capital Stock, liquidation preference not to exceed
(after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing plus any premium paid
in connection with such Refinancing in an amount not exceeding the
amount which is reasonably necessary, as determined in good faith
by the Board of Directors of the Company, to accomplish such
Refinancing) the lesser of
(i)
the principal amount or, in the case of
Disqualified Capital Stock, liquidation preference of the
Indebtedness (including Disqualified Capital Stock) so Refinanced
and
(ii)
if such Indebtedness being Refinanced was
issued with an original issue discount, the accreted value thereof
(as determined in accordance with GAAP) at the time of such
Refinancing;
provided that
(A)
(I) if the Indebtedness to be Refinanced
is Indebtedness of the Company, only the Company shall be the
obligor under such Refinancing Indebtedness and (II) if the
Indebtedness to be Refinanced is Indebtedness of a Guarantor, only
the Company or a Guarantor shall be the obligors under such
Refinancing Indebtedness,
(B)
such Refinancing Indebtedness shall (I)
not have an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refinanced at the time of such
Refinancing and (II) in all respects, be no less contractually
subordinated or junior, if applicable, to the rights of Holders
than was the Indebtedness (including Disqualified Capital Stock) to
be refinanced,
(C)
such Refinancing Indebtedness shall have
a final stated maturity or redemption date, as applicable, no
earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital
Stock) to be so refinanced or, if sooner, 91 days after the Stated
Maturity of the Notes, and
(D)
such Refinancing Indebtedness shall be
secured (if secured) in a manner no more adverse to the Holders
than the terms of the Liens (if any) securing such refinanced
Indebtedness, including, without limitation, the amount of
Indebtedness secured shall not be increased.
“ Reg S Permanent Global
Note ” means one or more permanent Global Notes bearing
the Private Placement Legend, that will be issued in an aggregate
amount of denominations equal in total to the outstanding principal
amount of the Reg S Temporary Global Note upon expiration of the
Distribution Compliance Period.
“ Reg S Temporary Global
Note ” means one or more temporary Global Notes bearing
the Private Placement Legend and the Reg S Temporary Global Note
Legend, issued in an aggregate amount of denominations equal in
total to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.
“ Reg S Temporary Global Note
Legend ” means the legend set forth in Section
2.6(g)(iii), which is required to be placed on all Reg S Temporary
Global Notes issued under this Indenture.
“ Registration Rights
Agreement ” means the Exchange and Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and
the Initial Purchaser, as such agreement may be amended, modified
or supplemented from time to time.
“ Regulation S ” means
Regulation S promulgated under the Securities Act, as it may be
amended from time to time, and any successor provision
thereto.
“ Regulation S Global Note
” means a Reg S Temporary Global Note or a Reg S Permanent
Global Note, as the case may be.
“ Related Business ”
means the business conducted (or proposed to be conducted) by the
Company and its Subsidiaries as of the Issue Date and any and all
businesses that in the good faith judgment of the Board of
Directors of the Company are materially related
businesses.
“ Representative ”
means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
“ Restricted Definitive Note
” means one or more Definitive Notes bearing the Private
Placement Legend, issued under this Indenture.
“ Restricted Global Note
” means one or more Global Notes bearing the Private
Placement Legend, issued under this Indenture; provided that
in no case shall an Exchange Note issued in accordance with this
Indenture and the terms of the Registration Rights Agreement be a
Restricted Global Note.
“ Restricted Investment
” means in one or a series of related transactions, any
Investment other than Permitted Investments.
“ Restricted Payment ”
means, with respect to any Person:
(a)
the declaration or payment of any
dividend or other distribution in respect of Equity Interests of
such Person or any parent or Subsidiary of such Person;
(b)
any payment on account of the purchase,
redemption or other acquisition or retirement for value of Equity
Interests of such Person or any Subsidiary or parent of such
Person;
(c)
other than (i) with the proceeds from the
sale or issuance of Refinancing Indebtedness applied within 45 days
of such sale or issuance, or (ii) in exchange for Refinancing
Indebtedness, any purchase, redemption, or other acquisition or
retirement for value of, any payment in respect of any amendment of
the terms of or any defeasance of, any Subordinated Indebtedness
(other than the Notes and the Existing Notes), directly or
indirectly, by such Person or a parent or Subsidiary of such Person
prior to the scheduled maturity, any scheduled repayment of
principal, or scheduled sinking fund payment, as the case may be,
of such Indebtedness; and
(d)
any Restricted Investment by such
Person;
provided , however , that the term “Restricted
Payment” does not include:
(i)
any dividend, distribution or other
payment on or with respect to Equity Interests of an issuer to the
extent payable solely in shares of Qualified Capital Stock of such
issuer, or
(ii)
any dividend, distribution or other
payment to the Company, or to any Subsidiary of the Company, by the
Company or any of its Subsidiaries.
“ Rule 144A ” means
Rule 144A promulgated under the Securities Act, as it may be
amended from time to time, and any successor provision
thereto.
“ S&P ” means
Standard & Poor’s Rating Service, a division of The
McGraw-Hill Companies, Inc., and its successors.
“ SEC ” means the
United States Securities and Exchange Commission, or any successor
agency.
“ Securities Act ”
means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
“ Senior Debt ” means
Indebtedness of the Company (including any monetary obligation in
respect of the Credit Facilities, and any Accrued Bankruptcy
Interest incurred pursuant to the Credit Facilities in any
proceeding under any Bankruptcy Law) arising under the Credit
Facilities or that is permitted to be incurred under the terms of
this Indenture unless the terms of the instrument creating or
evidencing such Indebtedness expressly provide that it is on a
parity with or subordinated in right of payment to the Notes;
provided that in no event shall Senior Debt
include:
(a)
Indebtedness of the Company to any
Subsidiary of the Company or any officer, director or employee of
the Company or any of its Subsidiaries or any other
Affiliate,
(b)
Indebtedness incurred in violation of the
terms of this Indenture,
(c)
trade payable or other Indebtedness to
trade creditors,
(d)
Disqualified Capital Stock,
(e)
Capitalized Lease Obligations,
(f)
any liability for taxes owed or owing by
the Company, and
(g)
the Existing Notes.
“ Shelf Registration
Statement ” shall have the meaning set forth in the
Registration Rights Agreement.
“ Significant Subsidiary
” shall have the meaning provided under Regulation S-X of the
Securities Act, as in effect on the Issue Date.
“ Special Record Date
” means, for payment of any Defaulted Interest, a date fixed
by the Paying Agent pursuant to Section 2.12.
“ Stated Maturity ” or
“ stated maturity ” means, (a) 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 (which shall mean September 15, 2016
with respect to the Notes) and (b) 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 date on which
such installment is due and payable.
“ Subordinated Indebtedness
” means Indebtedness of the Company that is subordinated in
right of payment by its terms or the terms of any document or
instrument relating thereto to the Notes.
“ Subsidiary ,” with
respect to any Person, means:
(a)
a corporation a majority of whose Equity
Interests with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by such
Person, by such Person and one or more Subsidiaries of such Person
or by one or more Subsidiaries of such Person,
(b)
any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such
Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has at
least majority ownership interest, or
(c)
a partnership in which such Person or a
Subsidiary of such Person is, at the time, a general partner and in
which such Person, directly or indirectly, at the date of
determination thereof has at least a majority ownership
interest.
Notwithstanding the foregoing, an
Unrestricted Subsidiary shall not be a “Subsidiary” of
the Company or a “Subsidiary” of any of the
Subsidiaries of the Company. Unless the context requires
otherwise, Subsidiary means each direct and indirect Subsidiary of
the Company.
“ Transfer Restricted Notes
” means Global Notes and Definitive Notes that bear or are
required to bear the Private Placement Legend, issued under this
Indenture.
“ Treasury Rate ”
means, as of any Redemption Date, the yield to maturity as of that
Redemption Date 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 before the Redemption
Date (or, if that Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly
equal to the period from the Redemption Date to September 15, 2013;
provided , however , that if the period from the
Redemption Date to September 15, 2013 is less than one year, the
weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be
used.
“ Trustee ” means the
party named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture and
thereafter means such successor serving hereunder.
“ Unrestricted Definitive
Note ” means one or more Definitive Notes that do not
bear and are not required to bear the Private Placement Legend,
issued under this Indenture.
“ Unrestricted Global Note
” means one or more permanent Global Notes representing a
series of Notes that does not bear and is not required to bear the
Private Placement Legend, issued under this Indenture.
“ Unrestricted Subsidiary
” means any subsidiary of the Company that does not own any
Capital Stock of, or own or hold any Lien on any property of, the
Company or any of its Subsidiaries and that, at the time of
determination, shall be an Unrestricted Subsidiary (as designated
by the Board of Directors of the Company); provided that
such subsidiary at the time of such designation:
(a)
has no Indebtedness other than
Non-Recourse Indebtedness,
(b)
is not party to any agreement, contract,
arrangement or understanding with the Company or any of its
Subsidiaries unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company
or such Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company,
(c)
is a Person with respect to which neither
the Company nor any of its Subsidiaries has any direct or indirect
obligation (i) to subscribe for additional Equity Interests or (ii)
to maintain or preserve such Person’s financial condition or
to cause such Person to achieve any specified levels of operating
results, and
(d)
has not guaranteed or otherwise directly
or indirectly provided credit support for any Indebtedness of the
Company or any of its Subsidiaries, other than Guarantees of the
Notes.
Subject to Section 4.16, the Board of
Directors of the Company may designate any Unrestricted Subsidiary
to be a Subsidiary; provided that (x) no Default or Event of
Default is existing or will occur as a consequence thereof and (y)
immediately after giving effect to such designation, on a pro
forma basis, the Company could incur at least $1.00 of
Indebtedness pursuant to the Debt Incurrence Ratio set forth in
Section 4.7. Each such designation shall be evidenced by
filing with the Trustee a certified copy of the resolution giving
effect to such designation and an Officers’ Certificate
certifying that such designation complied with the foregoing
conditions.
“ U.S. Government
Obligations ” means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full
faith and credit of the United States of America is
pledged.
“ U.S. Person ” means
a U.S. person as defined in Rule 902 under the Securities
Act.
“ Voting Equity Interests
” means Equity Interests which at the time are entitled to
vote in the election of, as applicable, directors, members or
partners generally.
“ Wholly Owned Subsidiary
” means a Subsidiary all the Equity Interests of which (other
than directors’ qualifying shares to the extent required by
applicable law) are owned by the Company and/or one or more of its
Wholly Owned Subsidiaries.
Section
1.2
Other Definitions
.
|
|
|
Term
|
Defined
in Section
|
|
|
|
|
“ Additional Notes ”
|
2.2
|
|
“ Affiliate Transaction ”
|
4.11
|
|
“ Asset Sale ”
|
4.12
|
|
“ Asset Sale Offer ”
|
4.12
|
|
“ Asset Sale Offer Amount ”
|
4.12
|
|
“ Asset Sale Offer Period ”
|
4.12
|
|
“ Asset Sale Offer Price ”
|
4.12
|
|
“ Authentication Order ”
|
2.2
|
|
“ Bankruptcy Law ”
|
6.1
|
|
“ Benefited Party ”
|
10.1
|
|
“ Change of Control Offer ”
|
4.13
|
|
“ Change of Control Offer Period ”
|
4.13
|
|
“ Change of Control Purchase Date ”
|
4.13
|
|
“ Change of Control Purchase Price ”
|
4.13
|
|
“ Covenant Defeasance ”
|
8.3
|
|
“ Custodian ”
|
6.1
|
|
“ Debt Incurrence Ratio ”
|
4.7
|
|
“ Defaulted Interest ”
|
2.12
|
|
“ Designation Date ”
|
4.9
|
|
“ DTC ”
|
2.3
|
|
“ Excess Proceeds ”
|
4.12
|
|
“ Guarantee Obligations ”
|
10.1
|
|
“ incur ” or “ incurrence
”
|
4.7
|
|
“ Incurrence Date ”
|
4.7
|
|
“ Legal Defeasance ”
|
8.2
|
|
“ Non-payment Default ”
|
11.2
|
|
“ Paying Agent ”
|
2.3
|
|
“ Payment Blockage Period ”
|
11.2
|
|
“ Payment Default ”
|
11.2
|
|
“ Payment Notice ”
|
11.2
|
|
“ Registrar ”
|
2.3
|
|
“ Redemption Date ”
|
3.7
|
|
|
|
Section 1.3
Incorporation by Reference of Trust
Indenture Act
.
Whenever this Indenture refers to a
provision of the TIA, such provision is incorporated by reference
in and made a part of this Indenture.
The following TIA terms used in this
Indenture have the following meanings:
“ Commission ” means
the SEC;
“ indenture securities
” means the Notes;
“ indenture security holder
” means a Holder of a Note;
“ indenture to be qualified
” means this Indenture;
“ indenture trustee ”
or “ institutional trustee ” means the
Trustee;
“ obligor ” on the
Notes means the Company, each Guarantor and any successor obligor
upon the Notes.
All other terms used in this Indenture
that are defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule under the TIA have the meanings so
assigned to them.
Section
1.4
Rules of Construction
.
Unless the context otherwise
requires:
(a)
a term has the meaning assigned to
it;
(b)
an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP;
(c)
“or” is not
exclusive;
(d)
words in the singular include the plural,
and in the plural include the singular;
(e)
provisions apply to successive events and
transactions;
(f)
“herein,”
“hereof” and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(g)
references to sections of or rules under
the Securities Act and the Exchange Act shall be deemed to include
substitute, replacement of successor sections or rules adopted by
the SEC from time to time; and
(h)
unless otherwise required by the context,
references to “Section” or “Article” are
references to a Section or Article of this Indenture.
ARTICLE
II
THE NOTES
Section
2.1
Form and Dating
.
(a)
General . The Notes and the Trustee’s certificate
of authentication shall be substantially in the form of Exhibit
A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.
Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the
Notes shall constitute, and are hereby expressly made, a part of
this Indenture and the Company, any Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
(b)
Global Notes . Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon and the “Schedule
of Exchanges of Interests in the Global Note” attached
thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but
without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note”
attached thereto). Each Global Note shall represent such of
the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Notes Custodian, at the
direction of the Trustee, in accordance with instructions given by
the Holder thereof as required by Section 2.6 hereof.
(c)
Euroclear and Clearstream Procedures
Applicable . The
provisions of the “Operating Procedures of the Euroclear
System” and “Terms and Conditions Governing Use of
Euroclear” and the “General Terms and Conditions of
Clearstream” and “Customer Handbook” of
Clearstream (or any successor document setting forth the
procedures, terms and/or conditions of Euroclear or Clearstream, as
applicable) in effect at the relevant time shall be applicable to
transfers of beneficial interests in the Regulation S Global Notes
that are held by Participants through Euroclear or Clearstream, as
applicable.
Section
2.2
Execution and
Authentication
.
One or more Officers shall sign the Notes
for the Company by manual or facsimile signature. If an
Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be
valid. A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under this
Indenture. The Trustee shall, upon a written order of the
Company signed by an officer (an “ Authentication
Order ”), authenticate Notes for issuance up to the
aggregate principal amount stated in such Authentication Order.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent
may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
The Trustee shall, pursuant to an
Authentication Order, initially authenticate Notes for original
issue on the Issue Date in an aggregate principal amount of
$300,000,000 (other than as provided in Section 2.7). The
Trustee shall authenticate Notes thereafter in unlimited amount, so
long as permitted by the terms of this Indenture, including without
limitation Section 4.7 (such Notes, “ Additional Notes
”), for original issue pursuant to an Authentication Order,
in aggregate principal amount as specified in such order (other
than as provided in Section 2.7). Any Additional Notes issued
subsequent to the Issue Date shall be treated as a single class
with the Notes issued on the Issue Date for all purposes under this
Indenture, including without limitation waivers, amendments,
redemptions, Asset Sale Offers and Change of Control
Offers.
Section
2.3
Registrar, Paying Agent and
Depositary
.
The Company shall maintain an office or
agency in The City of New York, where Notes may be presented for
registration of transfer or for exchange (“ Registrar
”) and an office or agency where Notes may be presented for
payment (“ Paying Agent ”). The Registrar
shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term
“Registrar” includes any co-registrar and the term
“Paying Agent” includes any additional paying agent.
The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act
as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar. The Company initially appoints The
Depository Trust Company (“ DTC ”) to act as
Depositary with respect to the Global Notes. The Company
initially appoints the Trustee to act as the Registrar and Paying
Agent and to act as Notes Custodian with respect to the Global
Notes.
Section
2.4
Paying Agent to Hold Money in
Trust
.
The Company shall require each Paying
Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes,
and will notify the Trustee in writing of any default by the
Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent and in such event
any such Paying Agent shall have the obligation to pay all money
held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability
for such money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to
the Company, the Trustee shall serve as Paying Agent for the
Notes.
Section
2.5
Holder Lists
.
The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available
to it of the names and addresses of all Holders and shall otherwise
comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish, or shall cause the Registrar
(if other than the Company) to furnish, to the Trustee at least
seven Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of
the names and addresses of the Holders of Notes and the Company
shall otherwise comply with TIA Section 312(a).
Section
2.6
Transfer and Exchange
.
(a)
Transfer and Exchange of Global
Notes . A Global Note
may not be transferred except as a whole (but not in part) by the
Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. Global
Notes will be exchanged by the Company for Definitive Notes if (i)
the Company delivers to the Trustee notice from the Depositary that
(A) the Depositary is unwilling or unable to continue to act as
Depositary for the Global Notes or (B) the Depositary is no longer
a clearing agency registered under the Exchange Act and, in either
case, the Company fails to appoint a successor Depositary within 90
days after the date of such notice from the Depositary, (ii) the
Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee or (iii)
upon request of the Trustee or Holders of a majority of the
aggregate principal amount of outstanding Notes if there shall have
occurred and be continuing a Default or Event of Default with
respect to the Notes; provided that in no event shall the
Reg S Temporary Global Note be exchanged by the Company for
Definitive Notes prior to (A) the expiration of the Distribution
Compliance Period and (B) the receipt by the Registrar of any
certificate identified by the Company and its counsel to be
required pursuant to Rule 903 or Rule 904 under the Securities Act.
Upon the occurrence of any of the preceding events in (i),
(ii) or (iii) above, Definitive Notes shall be issued in such names
as the Depositary shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.7 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or
2.10 hereof, shall be authenticated and delivered in the form of,
and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section
2.6(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.6(b), (c) or (f)
hereof.
(b)
Transfer and Exchange of Beneficial
Interests in the Global Notes . The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the
Depositary, in accordance with the provisions of this Indenture and
the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as
applicable:
(i)
Transfer of Beneficial Interests in
the Same Global Note .
Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided , however , that prior to
the expiration of the Distribution Compliance Period, transfers of
beneficial interests in the Reg S Temporary Global Note may not be
made to a U.S. Person or for the account or benefit of a U.S.
Person (other than the Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section
2.6(b)(i).
(ii)
All Other Transfers and Exchanges of
Beneficial Interests in Global Notes . In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.6(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) an order from a Participant
or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit
or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance
with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B)(1) an
order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount
equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or
exchange referred to in (B) (1) above; provided that in no
event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Reg S Temporary Global Note
prior to (x) the expiration of the Distribution Compliance Period
and (y) the receipt by the Registrar of any certificates identified
by the Company or its counsel to be required pursuant to Rule 903
and Rule 904 under the Securities Act. Upon consummation of
an Exchange Offer by the Company in accordance with Section 2.6(f)
hereof, the requirements of this Section 2.6(b)(ii) shall be deemed
to have been satisfied upon receipt by the Registrar of the
instructions delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests
in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant
to Section 2.6(h) hereof.
(iii)
Transfer of Beneficial Interests to
Another Restricted Global Note . A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Note if the transfer complies with the requirements of
Section 2.6(b)(ii) above and the Registrar receives the
following:
(A)
if the transferee will take delivery in
the form of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (1) thereof;
and
(B)
if the transferee will take delivery in
the form of a beneficial interest in the Reg S Temporary Global
Note or the Reg S Permanent Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof.
(iv)
Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests in
the Unrestricted Global Note .
A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with
the requirements of Section 2.6(b)(ii) above and:
(A)
such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.6(f) hereof, and the holder of the
beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies that it is
not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B)
such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C)
such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D)
the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(a) thereof; or (2) if the holder of
such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in
item (4) thereof; and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable
Procedures so require, an opinion of Counsel in form, and from
legal counsel, reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant
to subparagraph (B) or (D) above at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and,
upon receipt of an Authentication order in accordance with Section
2.2 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted
Global Note cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.
(c)
Transfer or Exchange of Beneficial
Interests for Definitive Notes .
(i)
Beneficial Interests in Restricted
Global Notes to Restricted Definitive Notes . If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A)
if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B)
if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1)
thereof;
(C)
if such beneficial interest is being
transferred to a Person other than a U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (2)
thereof;
(D)
if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E)
if such beneficial interest is being
transferred to an Institutional Accredited Investor in reliance on
an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable;
(F)
if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G)
if such beneficial interest is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)
(c) thereof,
the Trustee shall cause the aggregate
principal amount of the applicable Restricted Global Note to be
reduced accordingly pursuant to Section 2.6(h) hereof, and the
Company shall execute and, upon receipt of an Authentication Order
pursuant to Section 2.2, the Trustee shall authenticate and deliver
to the Person designated in the instructions a Restricted
Definitive Note in the appropriate principal amount.
Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.6(c) shall be registered in such name or
names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such
Notes are so registered. Any Restricted Definitive Note
issued in exchange for a beneficial interest in a Restricted Global
Note pursuant to this Section 2.6(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii)
Beneficial Interests in Restricted
Global Notes to Unrestricted Definitive Notes
. A holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest
for an Unrestricted Definitive Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A)
such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.6(f) hereof, and the holder of such
beneficial interest, in the case of an exchange, or the transferee,
in the case of a transfer, certifies that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B)
such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C)
such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D)
the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Definitive Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or (2)
if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a Definitive Note that
does not bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), if the Registrar so requests or if
the Applicable Procedures so require, an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iii)
Beneficial Interests in Unrestricted
Global Notes to Unrestricted Definitive Notes
. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.6(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of
the applicable Unrestricted Global Note to be reduced accordingly
pursuant to Section 2.6(h) hereof, and the Company shall execute
and, upon receipt of an Authentication Order pursuant to Section
2.2, the Trustee shall authenticate and deliver to the Person
designated in the instructions an Unrestricted Definitive Note in
the appropriate principal amount. Any Unrestricted Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.6(c)(iii) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Unrestricted Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.6(c)(iii) shall not bear the Private Placement Legend.
(iv)
Transfer or Exchange of Reg S
Temporary Global Notes .
Notwithstanding the other provisions of this Section 2.6, a
beneficial interest in the Reg S Temporary Global Note may not be
(A) exchanged for a Definitive Note prior to (1) the expiration of
the Distribution Compliance Period (unless such exchange is
effected by the Company, does not require an investment decision on
the part of the holder thereof and does not violate the provisions
of Regulation S) and (2) the receipt by the Registrar of any
certificates identified by the Company or its counsel to be
required pursuant to Rule 903(b)(3)(B) under the Securities Act or
(B) transferred to a Person who takes delivery thereof in the form
of a Definitive Note prior to the events set forth in clause (A)
above or unless the transfer is pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903
or Rule 904.
(d)
Transfer and Exchange of Definitive
Notes for Beneficial Interests .
(i)
Restricted Definitive Notes to
Beneficial Interests in Restricted Global Notes
. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in the form
of a beneficial interest in a Restricted Global Note, then, upon
receipt by the Registrar of the following documentation:
(A)
if the Holder of such Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B)
if such Restricted Definitive Note is
being transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1)
thereof;
(C)
if such Restricted Definitive Note is
being transferred to a Person other than a U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904 under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D)
if such Restricted Definitive Note is
being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E)
if such Restricted Definitive Note is
being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B) through
(D) above, a certificate to the effect set forth in Exhibit
B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if
applicable;
(F)
if such Restricted Definitive Note is
being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G)
if such Restricted Definitive Note is
being transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item
(3)(c) thereof,
the Trustee shall cancel the Restricted
Definitive Note, and increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B)
above, the 144A Global Note and, in the case of clause (C) above,
the Regulation S Global Note.
(ii)
Restricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes
. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only
if:
(A)
such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.6(f) hereof, and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B)
such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C)
such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D)
the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or (2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in
item (4) thereof; and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel, and from legal
counsel, in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of
any of the subparagraphs in this Section 2.6(d)(ii), the Trustee
shall cancel the Restricted Definitive Notes so transferred or
exchanged and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii)
Unrestricted Definitive Notes to
Beneficial Interests in Unrestricted Global Notes
. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Notes.
If any such exchange or transfer from a
Definitive Note to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) of this Section 2.6(d) at a
time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 hereof, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of Definitive Notes so
transferred.
(e)
Transfer and Exchange of Definitive
Notes for Definitive Notes .
Upon request by a Holder of Definitive Notes and such
Holder’s compliance with the provisions of this Section
2.6(e), the Registrar shall register the transfer or exchange of
Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following
provisions of this Section 2.6(e).
(i)
Restricted Definitive Notes to
Restricted Definitive Notes .
Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A)
if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B)
if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C)
if the transfer will be made pursuant to
any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof,
if applicable.
(ii)
Restricted Definitive Notes to
Unrestricted Definitive Notes . Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note
or transferred to a Person or Persons who take delivery thereof in
the form of an Unrestricted Definitive Note if:
(A)
such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and Section 2.6(f) hereof, and the Holder, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the
Company;
(B)
any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C)
any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D)
the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(d) thereof;
or (2) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), if the Registrar so requests or if
the Applicable Procedures so require, an Opinion of Counsel in
form, and from legal counsel, reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iii)
Unrestricted Definitive Notes to
Unrestricted Definitive Notes . A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note. Upon receipt of a
request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from
the Holder thereof.
(f)
Exchange Offer . Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company
shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.2 and an Opinion of Counsel for the
Company as to certain matters discussed in this Section 2.6(f), the
Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the sum of
(A) the principal amount of the beneficial interests in the
Restricted Global Notes tendered for acceptance by Persons that
certify that (1) they are not Broker-Dealers, (2) they are not
participating in a distribution of the Exchange Notes and
(3) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (B)
the principal amount of Definitive Notes exchanged or transferred
for beneficial interests in Unrestricted Global Notes in connection
with the Exchange Offer pursuant to Section 2.6(d)(ii) and (ii)
Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for
exchange in the Exchange Offer (other than Definitive Notes
described in clause (i)(B) immediately above). Concurrently
with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global
Notes to be reduced accordingly, and the Company shall execute and,
upon receipt of an Authentication Order pursuant to Section 2.2,
the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
The Opinion of Counsel for the Company
referenced above shall state that:
(i)
the issuance and sale of the Exchange
Notes by the Company have been duly authorized and, when executed
and authenticated in accordance with the provisions of this
Indenture and delivered in exchange for Notes in accordance with
this Indenture and the Exchange Offer, will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms except as the enforceability thereof
may be limited by (A) bankruptcy, fraudulent transfer, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and (B) equitable principles
of general applicability (regardless of whether enforceability is
considered at equity or in law); and
(ii)
if applicable, when the Exchange Notes
are executed and authenticated in accordance with the provisions of
this Indenture and delivered in exchange for Notes in accordance
with this Indenture and the Exchange Offer, the Guarantees by the
Guarantors endorsed thereon will be valid and binding obligations
of the Guarantors, enforceable against the Guarantors in accordance
with their terms except as the enforceability thereof may be
limited by (A) bankruptcy, fraudulent transfer, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and (B) equitable principles
of general applicability (regardless of whether enforceability is
considered at equity or in law).
(g)
Legends . The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i)
Private Placement Legend
.
(A)
Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
“THE NOTES EVIDENCED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF THE UNITED STATES AND OTHER JURISDICTIONS.
AS USED HEREIN, THE TERMS “
OFFSHORE TRANSACTION ,” “ U.S. PERSON
” AND “ UNITED STATES ” HAVE THE MEANINGS
GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING.”
(B)
Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of
this Section 2.6 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii)
Global Note Legend
. To the extent required by the
Depositary, each Global Note shall bear legends in substantially
the following forms:
“THIS GLOBAL NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.”
“UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) (“ DTC ”), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”
(iii)
Reg S Temporary Global Note
Legend . To the extent
required by the Depositary, each Reg S Temporary Global Note shall
bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS
REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST
DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE. NOTHING
IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON
THIS NOTE.”
(h)
Cancellation and/or Adjustment of
Global Notes . At such
time as all beneficial interests in a particular Global Note have
been exchanged for Definitive Notes or a particular Global Note has
been redeemed, repurchased or cancelled in whole and not in part,
each such Global Note shall be returned to or retained and
cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial
interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest
is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect
such increase.
(i)
General Provisions Relating to
Transfers and Exchanges .
(i)
To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order.
(ii)
No service charge shall be made to a
holder of a beneficial interest in a Global Note or to a Holder of
a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.6, 4.12, 4.13 and 9.5 hereof).
(iii)
The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(iv)
All Global Notes and Definitive Notes
issued upon any registration of transfer or exchange of Global
Notes or Definitive Notes shall be the valid obligations of the
Company, evidencing the same Indebtedness, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or
exchange.
(v)
The Company shall not be required (A) to
issue, to register the transfer of or to exchange any Notes during
a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.2
hereof and ending at the close of business on the day of selection,
(B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a Record Date and the next
succeeding Interest Payment Date.
(vi)
Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and
the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and
for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii)
The Trustee shall authenticate Global
Notes and Definitive Notes in accordance with the provisions of
Section 2.2 hereof.
(viii)
All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.6 to effect a registration of transfer
or exchange may be submitted by facsimile.
Notwithstanding anything herein to the
contrary, as to any certifications and certificates delivered to
the Registrar pursuant to this Section 2.6, the Registrar’s
duties shall be limited to confirming that any such certifications
and certificates delivered to it are in the form of Exhibits
A , B , C and D attached hereto.
The Registrar shall not be responsible for confirming the
truth or accuracy of representations made in any such
certifications or certificates.
Section
2.7
Replacement Notes
.
If any mutilated Note is surrendered to
the Trustee or the Company and the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, the
Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the
Trustee’s requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in both the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a
Note is replaced. The Company may charge for its expenses in
replacing a Note. Every replacement Note is an additional
obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
Section
2.8
Outstanding Notes
.
The Notes outstanding at any time are all
the Notes authenticated by the Trustee (including any Note
represented by a Global Note) except for those cancelled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.9 hereof, a
Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note. If a Note is
replaced pursuant to Section 2.7 hereof, such Note, together with
the Guarantee of that particular Note endorsed thereon, ceases to
be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser. If
the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases
to accrue. If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption
date or the maturity date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed
to be no longer outstanding and shall cease to accrue
interest.
Section
2.9
Treasury Notes
.
In determining whether the Holders of the
required principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company, or by any Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are
so owned shall be so disregarded.
Section
2.10
Temporary Notes
.
Until certificates representing Notes are
ready for delivery, the Company may prepare and the Trustee, upon
receipt of an Authentication Order, shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Definitive
Notes in exchange for temporary Notes. Holders of temporary
Notes shall be entitled to all of the benefits of this
Indenture.
Section
2.11
Cancellation .
The Company at any time may deliver Notes
to the Trustee for cancellation. The Registrar and Paying
Agent shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The
Trustee, and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act).
Certification of the destruction of all cancelled Notes shall
be delivered to the Company. Subject to Section 2.7 hereof,
the Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for
cancellation.
Section
2.12
Defaulted Interest
.
Any interest on any Note which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date plus, to the extent lawful, any interest
payable on the defaulted interest at the rate and in the manner
provided in Section 4.1 hereof and in the Note (herein called
“ Defaulted Interest ”) shall forthwith cease to
be payable to the registered holder on the relevant Record Date,
and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b)
below.
(a)
The Company may elect to make payment of
any Defaulted Interest to the Persons in whose names the 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 notify the Trustee and
the Paying Agent in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed
payment, and at the same time the Company shall deposit with the
Paying Agent an amount of cash equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements reasonably satisfactory to the Paying Agent for
such deposit prior to the date of the proposed payment, such cash
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause (a).
Thereupon the Paying Agent shall fix a “Special Record
Date” for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Paying Agent of the notice of the proposed payment.
The Paying Agent shall promptly notify the Company and the
Trustee 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 its
address as it appears in the Note register maintained by the
Registrar not less than 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 mailed as aforesaid,
such Defaulted Interest shall be paid to the persons in whose names
the Notes (or their respective predecessor Notes) are registered on
such Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b)
The Company may make payment of any
Defaulted Interest in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee and
the Paying Agent of the proposed payment pursuant to this clause,
such manner shall be deemed practicable by the Trustee and the
Paying Agent.
Subject to the foregoing provisions of
this Section, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
Section
2.13
CUSIP Numbers
.
The Company in issuing the Notes may use
“CUSIP” numbers (if then generally in use), and, if so,
the Trustee shall use “CUSIP” numbers in notices of
redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company will promptly
notify the Trustee of any change in the “CUSIP”
numbers.
ARTICLE
III
REDEMPTION
Section
3.1
Notices to Trustee
.
If the Company elects to redeem Notes
pursuant to the redemption provisions of Section 3.7 hereof, it
shall furnish to the Trustee, at least 10 days (unless a shorter
period is acceptable to the Trustee) but not more than 60 days
(unless a longer period is acceptable to the Trustee) before a
Redemption Date, an Officers’ Certificate setting forth (a)
the clause of this Indenture pursuant to which the redemption shall
occur, (b) the Redemption Date, (c) the principal amount of Notes
to be redeemed and (d) the redemption price.
Section
3.2
Selection of Notes to Be
Redeemed
.
(a)
If less than all of the Notes are to be
redeemed at any time, the Trustee shall select the Notes or
portions thereof to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if
the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers appropriate
and fair. Any such determination shall be conclusive.
In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 10 days nor more than 60 days prior to the
Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.
(b)
The Trustee shall promptly notify the
Company in writing of the Notes selected for redemption and, in the
case of any Note selected for partial redemption, the principal
amount thereof to be redeemed. The Notes may be redeemed in
part in multiples of $1,000 only. Notes and portions of Notes
in denominations of larger than $1,000 selected shall be in amounts
of $1,000 or integral multiples of $1,000; except that if all of
the Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called
for redemption.
Section
3.3
Notice of Redemption
.
(a)
Subject to the provisions of Section 3.7
hereof, at least 10 days but not more than 60 days before a
Redemption Date, the Company shall mail or cause to be mailed, by
first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.
(b)
The notice shall identify the Notes to be
redeemed and shall state:
(i)
the Redemption Date;
(ii)
the redemption price;
(iii)
if any Note is being redeemed in part,
the portion of the principal amount equal to the unredeemed portion
thereof and that, after the Redemption Date upon surrender of such
Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the
original Note;
(iv)
the name and address of the Paying
Agent;
(v)
that Notes or portions thereof called for
redemption must be surrendered to the Paying Agent to collect the
redemption price;
(vi)
that, unless the Company defaults in
making such redemption payment, interest on Notes or portions
thereof called for redemption ceases to accrue on and after the
Redemption Date;
(vii)
the paragraph of the Notes and/or Section
of this Indenture pursuant to which the Notes or portions thereof
called for redemption are being redeemed; and
(viii)
that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Notes.
(c)
At the written request of the Company,
the Trustee shall give the notice of redemption in the
Company’s name and at its expense.
Section
3.4
Effect of Notice of
Redemption
.
Once notice of redemption is mailed in
accordance with Section 3.3 hereof, Notes called for redemption
become irrevocably due and payable on the Redemption Date at the
redemption price. A notice of redemption may not be
conditional.
Section
3.5
Deposit of Redemption
Price
.
On or prior to each Redemption Date, the
Company shall deposit with the Trustee or with the Paying Agent
immediately available funds sufficient to pay the redemption price
of and accrued and unpaid interest (and Liquidated Damages, if any)
on all Notes to be redee
