================================================================================
EXHIBIT 4(iii)
INDENTURE
by and among
PALL CORPORATION,
as Issuer,
the GUARANTORS named herein,
as Guarantors,
and
THE BANK OF NEW YORK,
as Trustee
6% Senior Notes due 2012
Dated as of August 1, 2002
================================================================================
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
--------------- -------
310 (a)(1)............................................... 709; 7.11
(a)(2)............................................... 709; 7.11
(a)(3)............................................... 709
(a)(4)............................................... 709
(a)(5)............................................... 709; 7.11
(b).................................................. 7.03; 709; 7.11
(c).................................................. 709
311 (a).................................................. 7.12
(b).................................................. 7.12
(c).................................................. n/a
312 (a).................................................. 2.06
(b).................................................. 11.03
(c).................................................. 11.03
313 (a).................................................. 7.07
(b)(1)............................................... 7.07
(b)(2)............................................... 7.07; 7.09
(c).................................................. 7.07; 10.02
(d).................................................. 7.07
314 (a)(1),(2),(3)....................................... 4.03; 10.05
(a)(4)............................................... 4.04
(b).................................................. n/a
(c)(1)............................................... 11.04
(c)(2)............................................... 11.04
(c)(3)............................................... n/a
(d).................................................. n/a
(e).................................................. 11.05
(f).................................................. n/a
315 (a).................................................. 7.01(b); 7.02
(b).................................................. 7.02; 11.02
(c).................................................. 7.01(a)
(d).................................................. 7.01(c)
(e).................................................. 6.11
316 (a)(last sentence)................................... 2.12
(a)(1)(A)............................................ 6.05
(a)(1)(B)............................................ 6.04
(a)(2)............................................... n/a
(b).................................................. 6.07
(c).................................................. 2.17; 9.04
317 (a)(1)............................................... 6.08
(a)(2)............................................... 6.09
(b).................................................. 2.05
318 (a).................................................. 11.01
(b).................................................. n/a
(c).................................................. 11.01
-----------------------
"n/a" means not applicable.
* This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..........................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act....................................8
SECTION 1.03. Rules of Construction................................................................9
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating......................................................................9
SECTION 2.02. Restrictive Legends.................................................................11
SECTION 2.03. Execution and Authentication........................................................13
SECTION 2.04. Registrar and Paying Agent..........................................................14
SECTION 2.05. Paying Agent to Hold Assets in Trust................................................14
SECTION 2.06. Holder Lists........................................................................15
SECTION 2.07. General Provisions Relating to Transfer and Exchange................................15
SECTION 2.08. Book-Entry Provisions for Global Notes..............................................17
SECTION 2.09. Special Transfer Provisions.........................................................18
SECTION 2.10. Replacement Notes...................................................................21
SECTION 2.11. Outstanding Notes...................................................................21
SECTION 2.12. Treasury Notes......................................................................21
SECTION 2.13. Temporary Notes.....................................................................22
SECTION 2.14. Cancellation........................................................................22
SECTION 2.15. CUSIP Numbers.......................................................................22
SECTION 2.16. Defaulted Interest..................................................................22
SECTION 2.17. Special Record Dates................................................................23
SECTION 2.18. Issuance of Additional Notes........................................................23
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee..................................................................24
SECTION 3.02. Selection of Notes to Be Redeemed...................................................24
SECTION 3.03. Notice of Redemption................................................................24
SECTION 3.04. Effect of Notice of Redemption......................................................25
-i-
Page
----
SECTION 3.05. Deposit of Redemption Price.........................................................25
SECTION 3.06. Notes Redeemed in Part..............................................................25
SECTION 3.07. Optional Redemption.................................................................26
SECTION 3.08. No Mandatory Redemption.............................................................26
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes....................................................................26
SECTION 4.02. Maintenance of Office or Agency.....................................................27
SECTION 4.03. Reports.............................................................................27
SECTION 4.04. Compliance Certificate..............................................................28
SECTION 4.05. Payment of Taxes and Other Claims...................................................28
SECTION 4.06. Corporate Existence.................................................................28
SECTION 4.07. Limitation on Liens.................................................................29
SECTION 4.08. Guarantees by Subsidiaries..........................................................31
ARTICLE V
MERGER, ETC.
SECTION 5.01. When Company May Merge, etc.........................................................31
SECTION 5.02. Successor Corporation Substituted...................................................32
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...................................................................32
SECTION 6.02. Acceleration........................................................................34
SECTION 6.03. Other Remedies......................................................................34
SECTION 6.04. Waiver of Past Defaults.............................................................35
SECTION 6.05. Control by Majority.................................................................35
SECTION 6.06. Limitation on Suits.................................................................35
SECTION 6.07. Rights of Holders To Receive Payment................................................36
SECTION 6.08. Collection Suit by Trustee..........................................................36
SECTION 6.09. Trustee May File Proofs of Claim....................................................36
SECTION 6.10. Priorities..........................................................................37
SECTION 6.11. Undertaking for Costs...............................................................37
SECTION 6.12. Stay, Extension and Usury Laws......................................................38
-ii-
Page
----
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee...................................................................38
SECTION 7.02. Rights of Trustee...................................................................40
SECTION 7.03. Individual Rights of Trustee........................................................41
SECTION 7.04. [Intentionally Omitted].............................................................41
SECTION 7.05. Trustee's Disclaimer................................................................41
SECTION 7.06. Notice of Defaults..................................................................41
SECTION 7.07. Reports by Trustee to Holders.......................................................41
SECTION 7.08. Compensation and Indemnity..........................................................42
SECTION 7.09. Replacement of Trustee..............................................................42
SECTION 7.10. Successor Trustee by Merger, Etc....................................................44
SECTION 7.11. Eligibility; Disqualification.......................................................44
SECTION 7.12. Preferential Collection of Claims Against the Company...............................45
SECTION 7.13. Trustee's Application for Instructions from the Company.............................45
SECTION 7.14. Appointment of Co-Trustee...........................................................45
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations................................................46
SECTION 8.02. Application of Trust Money..........................................................50
SECTION 8.03. Repayment to Company................................................................50
SECTION 8.04. Reinstatement.......................................................................51
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders..........................................................51
SECTION 9.02. With Consent of Holders.............................................................52
SECTION 9.03. Compliance with Trust Indenture Act.................................................53
SECTION 9.04. Revocation and Effect of Consents...................................................53
SECTION 9.05. Notation on or Exchange of Notes....................................................53
SECTION 9.06. Trustee to Sign Amendment, etc......................................................54
-iii-
Page
----
ARTICLE X
GUARANTEES OF SECURITIES
SECTION 10.01. Unconditional Guarantees............................................................54
SECTION 10.02. Execution and Delivery of Notation of Guarantees....................................57
SECTION 10.03. Releases Following Sale of Assets...................................................57
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls........................................................58
SECTION 11.02. Notices.............................................................................58
SECTION 11.03. Communication by Holders with Other Holders.........................................59
SECTION 11.04. Certificate and Opinion as to Conditions Precedent..................................59
SECTION 11.05. Statements Required in Certificate or Opinion.......................................59
SECTION 11.06. Rules by Trustee and Agents.........................................................60
SECTION 11.07. Legal Holidays......................................................................60
SECTION 11.08. Duplicate Originals.................................................................60
SECTION 11.09. Governing Law.......................................................................60
SECTION 11.10. No Adverse Interpretation of Other Agreements.......................................61
SECTION 11.11. Successors..........................................................................61
SECTION 11.12. Severability........................................................................61
SECTION 11.13. Counterpart Originals...............................................................61
SECTION 11.14. No Personal Liability...............................................................61
EXHIBIT A: Form of Initial Note...............................................................A-1
EXHIBIT B: Form of Certificate to be Delivered in Connection with Transfers
to Non-QIB Institutional Accredited Investors..................................B-1
EXHIBIT C: Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S.......................................................C-1
-iv-
Indenture, dated as of August 1, 2002, by and among Pall Corporation, a
New York corporation (the "Company" or the "Issuer"), as issuer, the Guarantors
named herein, as Guarantors and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 6% Senior Notes due 2012.
All things necessary to make this Indenture a valid and legally binding
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed for the equal and
ratable benefit of the Holders of the Initial Notes, and if and when issued, the
Exchange Notes, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Additional Notes" means additional notes (other than the Initial
Notes) issued from time to time after the Issue Date under the terms of this
Indenture (other than issuances pursuant to Section 2.07, 2.08, 2.09, 2.10,
2.13, 3.06, or 9.05 of this Indenture).
"Adjusted Treasury Rate" means, with respect to any redemption date:
(i) the yield, under the heading which represents the average
for the immediately preceding week, appearing in the most
recently published statistical release designated "H.15(519)"
or any successor publication which is published weekly by the
Board of Governors of the Federal Reserve System and which
establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the
Comparable Treasury Issue (if no maturity is within three
months before or after the Remaining Life, yields for the two
published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Adjusted
Treasury Rate will be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest
month); or
(ii) if such release (or any successor release) is not
published during the week preceding the calculation date or
does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such
redemption date.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct or
cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of Voting Stock, by contract or
otherwise. For purposes of this definition, the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, authenticating agent,
listing agent or co-Registrar.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
federal or state law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any duly authorized committee of such Board of
Directors.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in New York City are authorized or obligated by
law or executive order to close.
"Capital Stock" means (i) in the case of a corporation, corporate stock
(however designated); (ii) in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg,
formerly Cedelbank, or its successor.
"Company" means the party named as the Company in the first paragraph
of this Indenture until one or more successor corporations shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
means such successor or successors.
-2-
"Comparable Treasury Issue" means the U.S. Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes ("Remaining Life") or, if, in the reasonable judgment of the
Independent Investment Banker, there is no such security, then the Comparable
Treasury Issue will mean the U.S. Treasury security or securities selected by an
Independent Investment Banker as having an actual or interpolated maturity or
maturities comparable to the remaining terms of the Notes.
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for the applicable redemption date, after excluding
the highest and lowest Reference Treasury Dealer Quotations, or (2) if the
Independent Investment Banker obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means, calculated as of the date of
the financial statements for the most recently ended fiscal quarter or fiscal
year, as applicable, prior to the date of determination, the aggregate amount of
assets of the Company and its consolidated subsidiaries, less applicable
reserves but including investments in non-consolidated entities, after deducting
therefrom:
(i) all current liabilities, excluding any thereof which are
by their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time
as of which the amount thereof is being computed and excluding
deferred income taxes; and
(ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expenses and other like
intangibles, all as set forth on the Company's consolidated
balance sheet and computed in accordance with accounting
principles generally accepted in the United States.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx
Xxxx, XX 00000, attention: Corporate Trust Administration, or such other address
as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office at any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Credit Facility" means the revolving credit Facility dated August 30,
2000, as amended, among the Company, the lenders party thereto and Fleet
National Bank, as administrative agent, including any notes, guarantees,
collateral and security documents (including mortgages, pledge agreements and
other security arrangements), instruments and agreements executed in connection
therewith, and in each case as amended or refinanced from time to time,
including any agreement or agreements extending the maturity of, or refinancing
(including increasing the amount of borrowings or other Indebtedness outstanding
or available to be borrowed thereunder), all or any portion of the Indebtedness
under such agreement, and any successor or replacement agreement or agreements
with the same or any other agents, creditor, lender or group of creditors or
lenders.
-3-
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or lapse of time or
both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Dollar" or the symbol "$" each mean the lawful currency of the United
States of America.
"Euroclear" means Euroclear Bank, S.A./N.V., or its successor, as
operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations of the SEC promulgated
thereunder.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Global Notes" has the meaning specified in Section 2.01.
"Guarantor" means the entities listed as Guarantors on the signature
pages hereto and such other Person as may become a "Guarantor" hereunder
pursuant to Section 4.08.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Inactive Subsidiary" means a Subsidiary of the Company that has no
operations or has only nominal assets or liabilities.
"Indebtedness" means indebtedness for money borrowed and the deferred
purchase price of property or assets purchased.
-4-
"Indenture" means this Indenture, as amended, supplemented or modified
from time to time.
"Independent Investment Banker" means one of the Reference Treasury
Dealers selected by the Company, or if any such firm is unwilling or unable to
serve as such, an independent investment and banking institution of national
standing appointed by the Company.
"Initial Notes" refers to $280,000,000 aggregate principal amount of 6%
Senior Notes due 2012 issued on the Issue Date.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2) or (7)
under the Securities Act.
"Interest" means, with respect to the Notes, the sum of any interest
and any Liquidated Damages, if any, on the Notes.
"Interest Payment Date" means each of February 1 and August 1,
commencing February 1, 2003.
"Issue Date" means the date of original issuance of the Notes under
this Indenture.
"Legal Holiday" has the meaning specified in Section 10.07.
"Make Whole Amount" means the sum of the present values of the
remaining scheduled payments of principal and interest thereon (exclusive of the
interest accrued to the date of redemption) computed by discounting such
payments to the redemption date on a semiannual basis, assuming a 360-day year
consisting of twelve 30-day months, at a rate equal to the sum of 37.5 basis
points plus the Adjusted Treasury Rate, on the third Business Day prior to the
redemption date, as calculated by an Independent Investment Banker.
"Maturity Date" means August 1, 2012.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Non-U.S. Persons" means a person who is not a "U.S. person" (as
defined in Regulation S).
"Notes" means the Initial Notes and the Additional Notes.
"Officer" of any Person means the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Treasurer, the
Secretary or the Controller of such Person.
-5-
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer, Assistant Secretary or Assistant
Controller of any Person.
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company.
"Participants" has the meaning specified in Section 2.08.
"Paying Agent" has the meaning specified in Section 2.04.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof or other entity of any kind.
"Physical Notes" has the meaning specified in Section 2.01.
"Principal Property" means each manufacturing or processing plant or
facility of the Company or any of its Restricted Subsidiaries whether owned or
leased on the date of the indenture or thereafter acquired, other than any
property that either (a) has a gross book value of less than 2% of Consolidated
Net Tangible Assets or (b) in the opinion of the Company's board of directors,
is not materially important to the business conducted by the Company and its
Subsidiaries.
"Qualified Institutional Buyer" or "QIB" has the meaning set forth in
Rule 144A under the Securities Act.
"Redemption Date" means, with respect to any Notes to be redeemed, the
date fixed for such redemption pursuant to this Indenture.
"Redemption Price" means the redemption price fixed in accordance with
the terms of the Notes, including accrued and unpaid interest, if any, to the
date fixed for redemption.
"Reference Treasury Dealer" means UBS Warburg LLC, and its successors;
provided that if UBS Warburg LLC ceases to be, and has no affiliate that is, a
primary U.S. Government securities dealer ("Primary Treasury Dealer"), the
Company will substitute for it another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date for the Notes, the average, as
determined by the Independent Investment Banker, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such redemption
date.
-6-
"Register" has the meaning specified in Section 2.04.
"Registrar" has the meaning specified in Section 2.04.
"Regulation S" means Regulation S promulgated under the Securities Act,
as it may be amended from time to time, and any successor provisions thereto.
"Regulation S Global Notes" has the meaning specified in Section 2.01.
"Regulation S Notes" has the meaning specified in Section 2.01.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Restricted Period" has the meaning specified in Section 2.01.
"Restricted Subsidiary" means (i) any Subsidiary which owns or leases,
directly or indirectly, a Principal Property; and (ii) any Subsidiary which
owns, directly or indirectly, any stock or Indebtedness of a Restricted
Subsidiary; except that a Restricted Subsidiary shall not include any Subsidiary
engaged primarily in financing receivables, making loans, extending credit or
other activities of a character conducted by a finance company.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as it
may be amended from time to time, and any successor provisions thereto.
"Rule 144A Global Notes" has the meaning specified in Section 2.01.
"Rule 144A Notes" has the meaning specified in Section 2.01.
"SEC" means the Securities and Exchange Commission and any government
agency succeeding to its functions.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute and the rules and regulations of the SEC promulgated
thereunder.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its subsidiaries or
such Person and one or more of its subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its subsidiaries or such Person and one or more of its
subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of its
subsidiaries).
-7-
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb), as in effect on the date of this Indenture; provided, however,
that in the event the TIA is amended after such date, "TIA" means, to the extent
required by such amendment, the Trust Indenture Act of 1939, as so amended, or
any successor statute.
"Transfer Restricted Securities" means securities that bear or are
required to bear the legend set forth in Section 2.02(a).
"Transfer Restricted Securities Legend" means the legend initially set
forth on the Notes in the form set forth in Section 2.02(a).
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter, means the successor.
"U.S. Government Obligations" means direct obligations fully guaranteed
or insured by the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable at the
issuer's option.
"Voting Stock" means the stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
-8-
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company and any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural, and in the plural include
the singular;
(vi) provisions apply to successive events and transactions; and
(vii) statements relating to the payment of principal and interest
shall include, without duplication, the payment of premium, if any, and
Liquidated Damages, if any.
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication shall
be substantially in the form annexed hereto as Exhibits A with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture. The Notes may have notations, legends or
endorsements required by law or stock exchange agreements to which the Company
is subject. Each Note shall be dated the date of its authentication. The Notes
shall be in minimum denominations of $1,000 and integral multiples thereof. The
terms and provisions contained in the form of the Note annexed hereto as Exhibit
A shall constitute, and are hereby expressly made, a part of this Indenture. To
the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
-9-
The Notes offered and sold in reliance on Rule 144A ("Rule 144A Notes")
shall be issued initially in the form of one or more permanent Global Notes
("Rule 144A Global Notes") in definitive, fully registered form without interest
coupons, in substantially the form of Exhibit A, which shall be deposited on
behalf of the purchasers of the Notes represented thereby with the Trustee, at
the Trustee's office in New York City, as custodian for the Depositary, and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter provided
and shall bear the legend set forth in Section 2.02(b). Rule 144A Global Notes
shall be substantially in the form set forth in Exhibit A attached hereto. The
aggregate principal amount of the Rule 144A Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Registrar,
in accordance with the instructions given by the Holder thereof, as hereinafter
provided.
Initial Notes offered and sold in offshore transactions to Non-U.S.
Persons (as defined in Regulation S under the Securities Act) ("Regulation S
Notes") in reliance on Regulation S shall be issued on the Issue Date, and
Additional Notes offered and sold in offshore transactions to Non-U.S. Persons
in reliance on Regulation S shall be issued, initially in the form of a global
Note, without interest coupons, substantially in the form set forth in Exhibit A
(the "Regulation S Global Notes"). Prior to the 40th day following the later of
commencement of the offering of the Notes and the Issue Date (such period
through and including the 40th day, the "Restricted Period"), beneficial
interests in the Regulation S Global Note may only be held through Euroclear or
Clearstream (or a successor agency to either or both of them), and any resale or
transfer of such interests to U.S. persons shall not be permitted during such
period unless such resale or transfer is made in accordance with the procedures
set forth in this Article II, including, without limitation, receipt by the
Trustee of a written certification from the transferor of the beneficial
interest in the form provided herein to the effect that such transfer is being
made to (i) a Person whom the transferor reasonably believes is a Qualified
Institutional Buyer within the meaning of Rule 144A under the Securities Act in
a transaction meeting the requirements of such Rule or (ii) an Institutional
Accredited Investor purchasing for its own account or for the account of such an
Institutional Accredited Investor, subject to delivery of the letters and
opinions contemplated by this Indenture. The Regulation S Global Note will be
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Issuer and authenticated by the Trustee as hereinafter provided. The
Regulation S Global Note may be represented by more than one certificate, if so
required by the Depositary's rules regarding the maximum principal amount to be
represented by a single certificate. The aggregate principal amount of the
Regulation S Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
-10-
The Rule 144A Global Notes and the Regulation S Global Notes are
sometimes referred to herein as the "Global Notes."
Notes transferred to Institutional Accredited Investors shall be issued
in the form of permanent certificated Notes (the "Physical Notes") in registered
form. Notes issued in exchange for interests in the Global Notes pursuant to
Section 2.08 may be in the form of Physical Notes in registered form. The
Physical Notes shall be substantially in the form set forth in Exhibit A
attached hereto.
The definitive Notes shall be typed, printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. Restrictive Legends.
(a) Transfer Restricted Securities Legend.
(i) Each Global Note and Physical Note that constitutes a
Restricted Security or is sold in compliance with Regulation S shall bear the
following legend (the "Private Placement Legend") on the face thereof until
after the second anniversary of the later of the Issue Date and the last date on
which the Company or any Affiliate of the Company was the owner of such Note (or
any predecessor note) (or such shorter period of time as permitted by Rule
144(k) under the Securities Act or any successor provision thereunder), or such
longer period of time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Company, unless
otherwise agreed by the Company and the Holder thereof:
-11-
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN (OR THEREIN) MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF
THE ISSUER THAT THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE THERETO UNDER RULE 144(k) UNDER THE SECURITIES ACT WHICH IS
APPLICABLE TO THIS SECURITY (THE "RESALE RESTRICTION TERMINATION DATE")
OTHER THAN (1) TO EITHER ISSUER OR ITS SUBSIDIARIES, (2) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN
THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS
SECURITY IS NOT IN BOOK-ENTRY FORM), (3) TO A NON-"U.S. PERSON" IN AN
"OFFSHORE TRANSACTION" (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER
THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS
SECURITY IS NOT IN BOOK-ENTRY FORM), (4) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT, IF AVAILABLE, OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS
PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL
TIMES WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE
ISSUER OR THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE
OR OTHER TRANSFER PURSUANT TO CLAUSE (4) ABOVE TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST
OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
-12-
(ii) Upon any sale or transfer of a Transfer Restricted
Security in compliance with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted Security for a
Note that does not bear the Transfer Restricted Securities Legend, and shall
rescind any restriction on the transfer of such Transfer Restricted Security.
(b)Global Note Legend. Each Global Note shall also bear the
following legend on the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH
SUCCESSOR 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, A NEW YORK CORPORATION ("DTC"), TO AN ISSUER 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 IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.09 OF THE INDENTURE REFERRED TO HEREIN.
SECTION 2.03. Execution and Authentication.
Two 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 the Note is authenticated, the Note shall be valid
nevertheless.
-13-
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 one
Officer of the Company, authenticate for original issue (i) Initial Notes on the
Issue Date in aggregate principal amount of $280,000,000, and (ii) Additional
Notes in accordance with Section 2.18.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Notes. Unless limited by the terms of such
appointment, 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 the Company or an Affiliate of the Company.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer (the "Registrar") and an office or agency
where Notes may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Notes (the "Register") and of their transfer. The
Company may appoint one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional paying agent and the
term "Registrar" includes any additional registrar. The Company may change any
Paying Agent or Registrar without prior notice to any Holder
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the terms of the
TIA and implement the terms of this Indenture which relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and address
of any Agent who is 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 Affiliate of the Company may act as Paying
Agent or Registrar; provided, however, that none of the Company, its
Subsidiaries or the Affiliates of the foregoing shall act (i) as Paying Agent in
connection with redemptions, offers to purchase, discharges and defeasance, as
otherwise specified in this Indenture, and (ii) as Paying Agent or Registrar if
a Default or Event of Default has occurred and is continuing.
The Company hereby initially appoints the Trustee as Registrar and
Paying Agent in the United States.
-14-
SECTION 2.05. Paying Agent to Hold Assets in Trust.
Not later than 10:30 a.m. (New York time) on each due date of the
principal and interest on any Notes, the Company shall deposit with one or more
Paying Agents money in immediately available funds sufficient to pay such
principal and interest so becoming due. The Company shall require each Paying
Agent other than the Trustee to agree in writing that the Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of and interest on the Notes and shall
promptly notify the Trustee of any failure by the Company (or any other obligor
on the Notes) in making any such payment. While any such failure continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require, for
the purpose of obtaining the satisfaction and discharge of this Indenture or for
any other purpose, 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 of the Company) shall have no further liability for the money so
paid over to the Trustee.
If the Company or any Subsidiary of the Company or any Affiliate of any
of them acts as Paying Agent, it shall, prior to or on each due date of any
principal of or interest on the Notes, segregate and hold in a separate trust
fund for the benefit of the Holders a sum of money sufficient with monies held
by all other Paying Agents, to pay such principal or interest so becoming due
until such sum of money shall be paid to such Holders or otherwise disposed of
as provided in this Indenture, and will promptly notify the Trustee of its
actions or failure to act.
SECTION 2.06. 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
Holders and shall otherwise comply with Section 312(a) of the TIA. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee prior to
or on each Interest Payment Date for the Notes and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, relating
to such Interest Payment Date or request, as the case may be; provided that, as
long as the Trustee is the Registrar, no such list need be furnished..
SECTION 2.07. General Provisions Relating to Transfer and Exchange.
The Notes are issuable only in registered form. A Holder may transfer a
Note only by written application to the Registrar or another transfer agent
stating the name of the proposed transferee and otherwise complying with the
terms of this Indenture. No such transfer shall be effected until, and such
transferee shall succeed to the rights of a Holder only upon, final acceptance
and registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Holder as provided herein, the Company, the
Trustee, and any agent of the Company shall treat the Person in whose name the
Note is registered as the owner thereof for all purposes whether or not the Note
shall be overdue, and neither the Company, the Trustee, nor any such agent shall
be affected by notice to the contrary. Furthermore, any Holder of a Global Note
shall, by acceptance of such Global Note, agree that transfers of beneficial
interests in such Global Note may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent) and that ownership
of a beneficial interest in the Note shall be required to be reflected in a
book-entry. Notwithstanding the foregoing, in the case of a Transfer Restricted
Security, a beneficial interest in a Global Note being transferred in reliance
on an exemption from the registration requirements of the Securities Act other
than in accordance with Rule 144, Rule 144A and Regulation S may only be
transferred for a Physical Note.
-15-
When Notes are presented to the Registrar or another transfer agent
with a request to register the transfer, the Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transactions are met (including that such Notes are duly endorsed or accompanied
by a written instrument of transfer duly executed by the Holder thereof or by an
attorney who is authorized in writing to act on behalf of the Holder). Subject
to Section 2.03, to permit registrations of transfers, the Company shall execute
and the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or redemption of the
Notes, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable
upon exchanges pursuant to Section 2.13, 3.06 or 9.05 hereof).
Neither the Registrar nor any other transfer agent nor the Company
shall be required to:
(i) issue, register the transfer of any Note during a period
beginning at the opening of business 15 Business Days before the day of
any selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection; or
(ii) register the transfer of any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part; or
(iii) register the transfer of any Note during a period
beginning at the opening of business 15 Business Days before an
Interest Payment Date and ending at the close of business of the
Interest Payment Date.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
-16-
SECTION 2.08. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall:
(i) be registered in the name of the Cede & Co. as the nominee
of the Depositary;
(ii) be delivered to the Trustee as custodian for the
Depositary; and
(iii) bear legends as set forth in Section 2.02 hereof.
Members of, or participants in, the Depositary ("Participants") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
contained herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization (which may be in electronic form) furnished by the
Depositary or impair, as between the Depositary and the Participants, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
(b) Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Beneficial owners may transfer their
interests in Global Notes in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.09 hereof.
(c) Any beneficial interest in one of the Global Notes
that is transferred to a Person who takes delivery in the form of an interest in
another Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in such other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
retains such an interest.
(d) The registered Holder of a Global Note may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
-17-
(e) If at any time:
(i) the Company notifies the Trustee in writing that the
Depositary is no longer willing or able to continue to act as a
depository or the Depositary ceases to be registered as a clearing
agency under the Exchange Act for the Global Notes, and in each case a
successor depository for the Global Notes is not appointed by the
Company within 90 days of such notice or cessation;
(ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of the Notes in definitive
form under this Indenture in exchange for all or any part of the Notes
represented by a Global Note or Global Notes; or
(iii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depositary,
the Depositary shall surrender such Global Note or Global Notes to the Trustee
for cancellation and then the Company shall execute, and the Trustee shall
authenticate and deliver in exchange for such Global Note or Global Notes,
Physical Notes, in an aggregate principal amount equal to the principal amount
of such Global Note or Global Notes. Such Physical Notes shall be registered in
such names as the Depositary shall identify in writing as the beneficial owners
of the Notes represented by such Global Note or Notes (or any nominee thereof).
(f) Notwithstanding the foregoing, in connection with any
transfer of a portion of the beneficial interests in a Global Note to beneficial
owners pursuant to paragraph (e) of this Section 2.08, the Registrar shall
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in such Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Notes of
like tenor and amount.
SECTION 2.09. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date (provided, however, that neither
the Company nor any Affiliate of the Company has held any beneficial
interest in such Note, or portion thereof, at any time on or prior to
the second anniversary of the Issue Date) or (y) (1) in the case of a
transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit B
hereto and any legal opinions and certifications required thereby or
(2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit C hereto; and
-18-
(ii) if the proposed transferor is a Participant holding a
beneficial interest in the Global Note, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and (y)
written instructions given in accordance with the Depositary's and the
Registrar's procedures; whereupon (a) the Registrar shall reflect on
its books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Notes) a decrease in the principal
amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and
(b) the Company shall execute and the Trustee shall authenticate and
deliver, one or more Physical Notes of like tenor and amount; and
(iii) in the case of a transfer to a non-U.S. Person, if the
proposed transferee is a Participant, and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by
an interest in a Regulation S Global Note, upon receipt by the
Registrar of written instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of such Regulation S Global Note in an amount equal to
the principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
-19-
(ii) if the proposed transferee is a Participant, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in a Global Note, upon receipt by
the Registrar of written instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of such Global Note in an amount equal to the
principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(c) Transfer Restricted Securities Legend. Upon the transfer
or replacement of Notes not bearing the Transfer Restricted Securities Legend,
the Registrar shall deliver Notes that do not bear the Transfer Restricted
Securities Legend. Upon the transfer or replacement of Notes bearing the
Transfer Restricted Securities Legend, the Registrar shall deliver only Notes
that bear the Transfer Restricted Securities Legend unless (i) the requested
transfer is after the second anniversary of the Issue Date (provided, however,
that neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time prior to or on
the second anniversary of the Issue Date), or (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(d) General. By its acceptance of any Note bearing the
Transfer Restricted Securities Legend, each Holder of such a Note acknowledges
the restrictions on transfer of such Note set forth in this Indenture and agrees
that it will transfer such Note only as provided in this Indenture. The
Registrar shall not register a transfer of any Note unless such transfer
complies with the restrictions on transfer of such Note set forth in this
Indenture. The Registrar shall be entitled to receive and rely on written
instructions from the Company verifying that such transfer complies with such
restrictions on transfer. In connection with any transfer of Notes, each Holder
agrees by its acceptance of the Notes to furnish the Registrar or the Company
such certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.08 hereof or this Section
2.09. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
-20-
SECTION 2.10. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
requirements of the Trustee and the Company are met; provided that, if any such
Note has been called for redemption in accordance with the terms thereof, the
Trustee may pay the Redemption Price thereof on the Redemption Date without
authenticating or replacing such Note. The Trustee or the Company may, in either
case, require the Holder to provide an indemnity bond sufficient in the judgment
of each of the Trustee and the Company to protect the Company, the Trustee or
any Agent from any loss which any of them may suffer if a Note is replaced or if
the Redemption Price therefor is paid pursuant to this Section 2.10. The Company
may charge the Holder who has lost a Note for its expenses in replacing a Note.
Every replacement Note is an obligation of the Company and shall be
entitled to the benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
SECTION 2.11. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee, except for (i) those cancelled by it, (ii) those delivered to it
for cancellation and (iii) those described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.10 hereof, it ceases to be
outstanding and interest ceases to accrue unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona fide purchaser.
If all principal of and interest on any Note are considered paid under
Section 4.01 hereof, such Note ceases to be outstanding and interest on it
ceases to accrue.
Except as provided in Section 2.12 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds such Note.
SECTION 2.12. 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 an Affiliate of the Company shall be considered as though they are
not outstanding provided, however, that in determining whether the Holders of
the requisite principal amount of outstanding Notes are present at a meeting of
Holders of Notes for quorum purposes or have consented to or voted in favor of
any request, demand, authorization, direction, notice, consent, waiver amendment
or modification hereunder, Notes held for the account of the Company, any of its
subsidiaries or any of its affiliates shall be disregarded and deemed not to be
outstanding, except that in determining whether the Trustee shall be protected
in making such a determination or relying upon any such quorum, consent or vote,
only Notes which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded.
-21-
SECTION 2.13. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and execute, and the Trustee shall authenticate upon a written order of the
Company signed by one Officer of the Company, 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. 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 2.14. 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, payment or repurchase.
The Trustee shall cancel all Notes surrendered for registration of transfer,
payment, repurchase, redemption, replacement or cancellation and shall dispose
of them in accordance with its customary procedures or, upon the Company's
written request, return such cancelled Notes to the Company (subject to the
record retention requirements of the Exchange Act). The Company may not issue
new Notes to replace Notes that it has paid or redeemed or that have been
delivered to the Trustee for cancellation.
SECTION 2.15. CUSIP Numbers.
The Company in issuing the Notes may use CUSIP numbers (if then
generally in use), and the Trustee shall use the same in notices of redemption
as a convenience to Holders; provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any such notice 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 shall promptly notify the Trustee of any change in CUSIP numbers.
SECTION 2.16. Defaulted Interest.
If the Company fails to make a payment of interest on the Notes, it
shall pay such defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest, in any lawful manner. It may elect to pay
such defaulted interest, plus any such interest payable on it, to the Persons
who are Holders of such Notes on which the interest is due on a subsequent
special record date. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each such Note. The Company
shall fix any such record date and payment date for such payment. At least 15
days before any such record date, the Company shall mail to Holders affected
thereby a notice that states the record date, Interest Payment Date, and amount
of such interest to be paid.
-22-
SECTION 2.17. Special Record Dates.
The Company may, but shall not be obligated to, set a record date for
the purpose of determining the identity of Holders of Notes entitled to consent
to any supplement, amendment or waiver permitted by this Indenture. If a record
date is fixed, the Holders of Notes outstanding on such record date, and no
other Holders, shall be entitled to consent to such supplement, amendment or
waiver or revoke any consent previously given, whether or not such Holders
remain Holders after such record date. No consent shall be valid or effective
for more than 90 days after such record date unless consents from Holders of the
principal amount of Notes required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day period.
SECTION 2.18. Issuance of Additional Notes.
The Company shall be entitled to issue Additional Notes under this
Indenture which shall have identical terms as the Notes issued on the Issue
Date, other than with respect to the date of issuance, issue price, and amount
of interest payable on the first payment date applicable thereto; provided
however, no Additional Notes may be issued if an Event of Default has occurred
and is continuing. The Initial Notes issued on the Issue Date and any Additional
Notes issued in exchange therefor shall be treated as a single class for all
purposes under this Indenture.
With respect to any Additional Notes, the Company shall set forth in a
resolution of its Board of Directors and in a Officers' Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Notes and the amount of interest payable on the first
payment date applicable thereto; and
(3) whether such Additional Notes shall be Notes bearing the
Transfer Restricted Securities Legend and issued in the form of Initial
Notes.
-23-
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the redemption
provision of Section 3.07 hereof, it shall notify the Trustee and the Paying
Agent of the intended Redemption Date, the principal amount of Notes to be
redeemed, CUSIP numbers of the Notes to be redeemed, and the Redemption Price.
The Company shall give each notice provided for in this Section 3.01
and an Officers' Certificate at least 30 days, but not more than 60 days, before
the Redemption Date (unless a shorter period shall be satisfactory to the
Trustee and the Paying Agent), except with respect to notice of the Redemption
Price. An Officers' Certificate containing the Redemption Price determined as of
a date not more than five Business Days prior to the Redemption Date shall be
delivered to the Trustee no later than two Business Days prior to the Redemption
Date.
SECTION 3.02. Selection of Notes to Be Redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed from the outstanding Notes by a method that
complies with the requirements of any exchange on which the Notes are listed,
or, if the Notes are not listed on an exchange, on a pro rata basis or by lot or
in accordance with any other method the Trustee considers fair and appropriate.
Notes and portions thereof that the Trustee selects shall be in amounts
equal to the minimum authorized denomination for Notes to be redeemed or any
integral multiple thereof. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company promptly in writing of the Notes or portions of
Notes to be called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before the Redemption Date,
the Company shall mail a notice of redemption by first-class mail to each Holder
whose Notes are to be redeemed at the address of such Holder appearing in the
Register.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
-24-
(ii) the Redemption Price;
(iii) if fewer than all outstanding Notes are to be redeemed,
the portion of the principal amount of the Notes to be redeemed and
that, after the Redemption Date, upon surrender of such Note, a new
Note in principal amount equal to the unredeemed portion will be
issued;
(iv) the name and address of each Paying Agent;
(v) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(vi) that, unless the Company defaults in payment of the
Redemption Price, interest on Notes called for redemption ceases to
accrue interest on and after the Redemption Date; and
(vii) CUSIP number, if any, of the Notes to be redeemed.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
when mailed to the Holder or, when first published, as applicable, whether or
not the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Notes shall not affect the
validity of the proceeding for the redemption of any other Notes.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become
due and payable on the Redemption Date at the Redemption Price. Upon surrender
to the Paying Agent, such Notes shall be paid at the Redemption Price.
SECTION 3.05. Deposit of Redemption Price.
Prior to or no later than 10:00 a.m. (New York City time) on the
Redemption Date, the Company shall deposit with the Trustee or with the Paying
Agent an amount of money sufficient to pay the Redemption Price of all Notes to
be redeemed on that date. The Paying Agent shall promptly return to the Company
any amount of money not required for that purpose.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder at the expense of the
Company, a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
-25-
SECTION 3.07. Optional Redemption.
The Company may, at its option, redeem the Notes, in whole, at
any time, or in part, from time to time, at the Redemption Price equal to the
greater of:
(i) 100% of the principal amount of the Notes being redeemed
on the Redemption Date; and
(ii) the Make Whole Amount
plus, in each case, accrued and unpaid interest, if any, on the Notes to the
Redemption Date.
Unless the Company defaults in its payment of the Redemption Price, on
and after the Redemption Date, interest will cease to accrue on the Notes or
portions of the Notes called for redemption and those Notes will cease to be
outstanding.
SECTION 3.08. No Mandatory Redemption.
The Company shall not be required to make any mandatory redemption
payments with respect to the Notes. The Notes shall not have any benefit of a
sinking fund.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay, or cause to be paid, the principal of and
interest on the Notes on the dates and in the manner provided in this Indenture
and the Notes. Principal and interest shall be considered paid on the date due
if the Paying Agent, if other than the Company, a Subsidiary of the Company or
any Affiliate of any of them, holds as of 10:00 a.m. (New York City time) on
that date immediately available funds designated for and sufficient to pay all
principal and interest then due. If the Company or any Subsidiary of the Company
or any Affiliate of any of them acts as Paying Agent, principal or interest
shall be considered paid on the due date if the entity acting as Paying Agent
complies with the second paragraph of Section 2.05 hereof.
The Company shall pay interest on overdue principal and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified therefor in the Notes.
-26-
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York an office or agency (which may be an office of the Trustee or an Affiliate
of the Trustee or Registrar) where the Notes may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company fails to maintain
any such required office or agency or fails to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the principal Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the principal Corporate Trust Office of
the Trustee as its office or agency in The Borough of Manhattan, The City of New
York in accordance with Section 2.04 hereof.
SECTION 4.03. Reports.
(a) So long as the Notes are outstanding, whether or not the Company is
then subject to Section 13(a) or 15(d) of the Exchange Act, the Company shall
electronically file with the SEC, the annual reports, quarterly reports and
other periodic reports that the Company would be required to file with the SEC
pursuant to Section 13(a) or 15(d) if the Company were so subject, and such
documents shall be filed with the SEC on or prior to the respective dates (the
"Required Filing Dates") by which the Company would be required so to file such
documents if the Company were so subject, unless, in any case, if such filings
are not then permitted by the SEC.
(b) If such filings with the SEC are not then permitted by the SEC, or
such filings are not generally available on the Internet free of charge, the
Company shall, within 15 days of each Required Filing Date, transmit by mail to
Holders of the Notes, as their names and addresses appear in the Register,
without cost to such Holders, and file with the Trustee copies of the annual
reports, quarterly reports and other periodic reports that the Company would be
required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange
Act if the Company were subject to such Section 13(a) or 15(d), and promptly
upon written request, supply copies of such documents to any prospective holder
or beneficial owner at Company's cost. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
-27-
(c) So long as any Notes remain outstanding and constitute "restricted
securities" under Rule 144, the Company shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Act.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company starting with the Company's fiscal year
ending on the Saturday closest to July 31, 2003, an Officers' Certificate one of
the signers of which is the principal executive, principal financial or
principal accounting officer, stating that in the course of the performance by
the signers of their duties as officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all conditions, or
Default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof. For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided for in
this Indenture. The certificate need not comply with Section 11.04 hereof.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all material lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 4.06. Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its and its
Subsidiaries' existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right, franchise or existence of a Subsidiary if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
-28-
SECTION 4.07. Limitation on Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to incur, issue, assume or guarantee any Debt that is
secured by a Mortgage on any Principal Property or on any shares of stock or
Indebtedness of any Restricted Subsidiary, without first effectively providing
that the Notes will be secured equally and ratably with, or prior to, the
incurred, issued, assumed or guaranteed secured Debt, for so long as such
secured Debt remains so secured.
This limitation on the incurrence, issuance, assumption or guarantee of
any Debt secured by a Mortgage will not apply to, and there will be excluded
from any secured Debt in any computation under this covenant, Debt secured by:
(1) Mortgages existing on the date hereof;
(2) Mortgages on property of, or on any shares of stock or
Indebtedness of, any entity existing at the time the entity is merged
into or consolidated with the Company or becomes a Restricted
Subsidiary;
(3) Mortgages in favor of the Company or any of its Restricted
Subsidiaries;
(4) Mortgages on property or on shares of stock or
Indebtedness existing at the time of acquisition thereof, including
acquisitions through merger, consolidation or other reorganization; or
to secure the payment of all or any part of the purchase price thereof
or the cost of construction, repair, alterations or development
thereon; or to secure any Debt incurred prior to, at the time of, or
within one year after the later of the acquisition, the completion of
construction or the commencement of full operation of the property or
within one year after the acquisition of the shares or Indebtedness for
the purpose of financing all or any part of the purchase price thereof
or construction thereon; provided that, if a commitment for the
financing is obtained prior to or within this one-year period, the
applicable Mortgage will be deemed to be included in this clause
whether or not the Mortgage is created within this one-year period;
(5) Mortgages in favor of the United States, any state
thereof, or any department, agency or instrumentality or political
subdivision of any of the foregoing, or in favor of any other country
or any political subdivision thereof;
-29-
(6) Mortgages required by any contract or statute in order to
permit the Company or any of its Restricted Subsidiaries to perform any
contract or subcontract made with or at the request of the United
States, any state thereof, or in favor of any other country or
political subdivision thereof, or any department, agency or
instrumentality of any of the foregoing;
(7) Any Mortgage resulting from the deposit of moneys or
evidence of Indebtedness in trust for the purpose of defeasing Debt of
the Company or any of its Restricted Subsidiaries or secured Debt of
the Company or any of its Restricted Subsidiaries the net proceeds of
which are used, substantially concurrently with the funding thereof,
and taking into consideration, among other things, required notices to
be given to the Holders of the outstanding Notes in connection with the
refunding, refinancing or repurchase thereof, and the required
corresponding durations thereof, to refund, refinance or repurchase all
of the outstanding Notes, including the amount of all accrued interest
thereon and reasonable fees and expenses and premiums, if any, incurred
by the Company or any of its Restricted Subsidiaries in connection
therewith;
(8) Easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, are not material in amount and
which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary
conduct of the Company's business or the business of the Company's
subsidiaries;
(9) Mortgages for taxes, assessments or other governmental
charges or levies which are not yet due and payable;
(10) Any attachment or judgment Mortgage, unless the
attachment or judgment it secures shall not, within 60 days after the
entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within 60 days after the
expiration of any stay;
(11) Statutory Mortgages of landlords and Mortgages of
carriers, warehousemen, mechanics, materialmen and other similar
Mortgages, in each case, incurred in the ordinary course of business
for sums not yet due and payable;
(12) Mortgages (other than any Mortgages imposed by ERISA)
incurred or deposits made in the ordinary course of business (i) in
connection with workers' compensation, unemployment insurance and other
types of social security or retirement benefits, or (ii) to secure (or
obtain letters of credit that secure) the performance of tenders,
statutory obligations, surety bonds, appeal bonds, bids, leases,
performance bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection
with the borrowing of money, the obtaining of advances or credit or the
payment of the deferred purchase price of property; and
-30-
(13) Any extension, renewal or replacement, or successive
extensions, renewals or replacements, of any Mortgage referred to in
the foregoing clauses of this Section 4.07, so long as the extension,
renewal or replacement Mortgage is limited to all or a part of the same
property, including any improvements on the property, shares of stock
or Indebtedness that secured the Mortgage so extended, renewed or
replaced.
Notwithstanding anything mentioned above, the Company and any one or
more of its Restricted Subsidiaries may incur, issue, assume or guarantee Debt
secured by Mortgages that would otherwise be subject to the above restrictions
if the aggregate amount of the Debt secured by the Mortgages, together with the
outstanding principal amount of all other secured Debt of the Company and its
Restricted Subsidiaries that would otherwise be subject to the above
restrictions, does not at any time exceed 10% of Consolidated Net Tangible
Assets.
SECTION 4.08. Guarantees by Subsidiaries.
(a) The Company shall not permit any Subsidiary (other than an
Inactive Subsidiary for so long as such entity is an Inactive
Subsidiary), directly or indirectly, to guarantee or secure the payment
of any Indebtedness of the Company under the Credit Facility unless
such Subsidiary simultaneously executes and delivers a supplemental
indenture to the Indenture providing for a guarantee on a joint and
several basis, the full and prompt payment of the principal of,
premium, if any, and interest on the Notes on a senior unsecured basis
(a "Subsidiary Guarantee").
ARTICLE V
MERGER, ETC.
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company consolidates with or merges into
another Person or conveys, transfers or leases its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety is a
corporation, partnership or trust is organized and validly existing
under the laws of the United States of America, any State thereof or
the District of Columbia and expressly or by operation of law assumes,
by an indenture supplemental to the Indenture, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium, if any, and
interest on all the Notes and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
-31-
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, has occurred and is continuing;
and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the Indenture and that all
conditions precedent in this Indenture relating to such transaction
have been complied with.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person, or any conveyance, transfer or lease of the properties
and assets substantially as an entirety in accordance with Section 5.01 of this
Indenture, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. In the event of any such transfer
or conveyance, but not any such lease, the Company shall be discharged from all
obligations and covenants under the Notes and this Indenture.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following constitutes an Event of Default with respect to
the Notes (whatever the reason for such Event of Default and whether it is
voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
-32-
(a) default in the payment of any interest on the Notes when
it becomes due and payable, and continuance of such default for a
period of 30 days;
(b) default in the payment of the principal of or any premium
on the Notes when due, whether at maturity, upon redemption, by
declaration or otherwise;
(c) failure to perform any other covenant in the Indenture and
continuance of such default or breach for 60 days after written notice
from the Trustee or Holders of at least 25% in aggregate principal
amount of the outstanding Notes;
(d) a default under any bond, debenture, note or other
evidence of Indebtedness of the Company or any Subsidiary of the
Company, having an aggregate principal amount outstanding of at least
in excess of $5,000,000, or under any Mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness by the Company or any Subsidiary of the
Company, having an aggregate principal amount outstanding of at least
in excess of $5,000,000, whether such Indebtedness now exists or shall
hereafter be created, which default is a payment default upon final
maturity of such Indebtedness or shall have resulted in such
Indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without
such Indebtedness having been discharged or such acceleration having
been rescinded or annulled, in each such case, within a period of 30
days after written notice from the Trustee or Holders of at least 25%
in aggregate principal amount of the Notes then outstanding;
(e) the Company or a Subsidiary of the Company pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its
creditors; or
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
-33-
(i) is for relief against the Company or any Subsidiary of the
Company in an involuntary case or proceeding;
(ii) appoints a Custodian for the Company or any Subsidiary of
the Company or for all or substantially all of its property;
or
(iii) orders the winding up or liquidation of the Company or
any Subsidiary of the Company,
and any such order or decree under this clause (f) remains unstayed and
in effect for 60 days, and
(g) failure by a Guarantor to keep its guarantee in full force
and effect or a declaration by a Guarantor that any guarantee of such
Guarantor is null and void and unenforceable or a finding by a
governmental authority of competent jurisdiction that any guarantee of
a Guarantor is invalid or a denial in writing by a Guarantor of its
liability under its guarantee.
SECTION 6.02. Acceleration.
If an Event of Default with respect to outstanding Notes (other than an
Event of Default specified in paragraph (e) or (f) of Section 6.01 of this
Indenture) occurs and is continuing, the Trustee or the Holders of not less than
25% in aggregate principal amount of the outstanding Notes, by written notice to
the Company, may declare due and payable 100% of the principal amount of all
Notes and premium, if any, plus any accrued and unpaid interest to the date of
payment. Upon a declaration of acceleration, such principal and premium, if any,
and accrued and unpaid interest to the date of payment shall be due and payable.
If an Event of Default specified in paragraph (e) or (f) of Section 6.01 of this
Indenture occurs, all unpaid principal and accrued interest on the Notes shall
automatically become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the
outstanding Notes by written notice to the Trustee may rescind and annul an
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of principal of and premium, if any, and interest, if any,
on the Notes which have become due solely because of the acceleration, have been
cured or waived and (ii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies.
If an Event of Default with respect to outstanding Notes occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal and premium, if any, of or
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture, including, without limitation, seeking recourse against
any Guarantor, if any.
-34-
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon the Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02 of this Indenture, the Holders of at
least a majority in principal amount of the outstanding Notes by notice to the
Trustee may waive an existing Default or Event of Default except a Default or
Event of Default in the payment of the principal of or any premium or interest
on any Note (provided, however, that, subject to Section 6.02, the Holders of a
majority in principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). When a Default or Event of Default is waived,
it is deemed cured and ceases.
SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of then
outstanding Notes have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that (i) conflicts with law or this Indenture, (ii) the Trustee
determines may be unduly prejudicial to the rights of other Holders or (iii) may
involve the Trustee in personal liability. The Trustee may take any other action
which it deems proper which is not inconsistent with any such direction.
SECTION 6.06. Limitation on Suits.
Subject to the provisions of Section 6.07 of this Indenture, no Holder
of Notes may pursue any remedy with respect to this Indenture or the Notes
unless:
(i) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal amount
of the outstanding Notes make a written request to the Trustee to
pursue the remedy;
-35-
(iii) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability,
cost or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of at least a
majority in principal amount of the outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal and premium, if any, of or
interest, if any, on the Note on or after the respective due dates expressed or
provided for in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) of this
Indenture occurs and is continuing with respect to Notes, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal and premium, if any, and accrued
interest, if any, remaining unpaid on the outstanding Notes, together with (to
the extent lawful) interest on overdue principal and premium, if any, and
interest, and such further amount as shall be sufficient to cover the costs and,
to the extent lawful, expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 7.07 of this
Indenture.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Holders allowed in any judicial proceeding relative to the Company, its
creditors or its property and shall be entitled and empowered to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 of this
Indenture. Nothing contained in this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
-36-
SECTION 6.10. Priorities.
If the Trustee collects any amount of money pursuant to this Article
VI, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 of this Indenture, including payment of all
reasonable compensation, expense and liabilities incurred, and all
advances made by the Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal and premium, if any, and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest, respectively; and
Third: to the Company or any other obligors on the Notes, as
their interests may appear as directed in writing by the Company, or to
such party as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
The Trustee shall notify the Company in writing reasonably in advance of any
such record date and payment date.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 of this Indenture or a suit by Holders of more
than 10% in aggregate principal amount of the outstanding Notes.
-37-
SECTION 6.12. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; provided, however, that in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not, on their face,
they conform to the requirements of this Indenture (but need not
investigate or confirm the accuracy of mathematical calculations or
other facts stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct except that:
-38-
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or other officer, unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 of this Indenture.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability, cost or expense
(including, without limitation, reasonable fees of counsel).
(f) The Trustee shall not be obligated to pay interest on
any money or other assets received by it except in accordance with this
Indenture unless otherwise agreed in writing with the Company. Assets held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, Custodian and other Person
employed to act hereunder.
-39-
(j) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
any loss, liability or expense which might be incurred by it in compliance with
such request.
SECTION 7.02. Rights of Trustee.
Subject to Section 315(a) through (d) of the TIA:
(a) The Trustee may conclusively rely on any document or other
writing believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on the Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within the rights or powers conferred upon it by this Indenture, unless
the Trustee's conduct constitutes negligence, willful misconduct or bad
faith.
(e) The Trustee may consult with counsel of its selection and
the advice of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(f) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(g) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
-40-
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as such term is defined in Section 310(b) of the TIA), it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as Trustee (to the extent permitted under Section 310(b) of the TIA) or
resign. Any agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 of this Indenture.
SECTION 7.04. [Intentionally Omitted]
SECTION 7.05. Trustee's Disclaimer.
The Trustee or any Agent (i) makes no representation as to the validity
or adequacy of this Indenture or the Notes, (ii) is not accountable for the
Company's use of the proceeds from the Notes, and (iii) is not responsible for
any statement in the Notes other than its certificate of authentication.
SECTION 7.06. Notice of Defaults.
If a Default or Event of Default with respect the Notes occurs and is
continuing, and if it is actually known to the Trustee, the Trustee shall mail
to Holders a notice of the Default or Event of Default within 90 days after the
occurrence thereof. Except in the case of a Default or Event of Default in
payment of any such Note, the Trustee may withhold the notice if and so long as
it in good faith determines that withholding the notice is in the interests of
the Holders.
SECTION 7.07. Reports by Trustee to Holders.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required by Section 313
of the TIA at the times and in the manner provided by the TIA.
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC, if required, and each stock exchange, if any, on which the
Notes are listed. The Company shall promptly notify the Trustee when the Notes
become listed or delisted on any stock exchange.
-41-
SECTION 7.08. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its services hereunder. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, advances
and expenses incurred by it, including in particular, but without limitation,
those incurred in connection with the enforcement of any remedies hereunder.
Such expenses may include the reasonable fees and out-of-pocket expenses of the
Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall indemnify
and hold harmless the Trustee and any predecessor trustee against any and all
loss, liability, damage, claim or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee) incurred by
it arising out of or in connection with the acceptance or administration of the
trust under this Indenture. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend such claim and
the Trustee shall cooperate in such defense. The Trustee may have separate
counsel, which counsel must be reasonably acceptable to the Company, and the
Company shall pay the reasonable fees and out-of-pocket expenses of such
counsel.
The Company need not reimburse any expense or indemnify against any
loss, liability, cost or expense incurred by the Trustee through its own gross
negligence, willful misconduct or bad faith.
To secure the Company's payment obligations in this Section 7.08, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay the principal of and
interest on particular Notes. The Trustee's right to receive payment of any
amounts due under this Section 7.08 will not be subordinate to any other
liability or Indebtedness of the Company.
The Company's obligations pursuant to this Section 7.08 shall survive
the satisfaction and discharge of this Indenture. When the Trustee incurs
expenses or renders services after an Event of Default specified in paragraph
(e) or (f) of Section 6.01 of this Indenture occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.09. Replacement of Trustee.
The Trustee shall comply with Section 313(b) of the TIA to the extent
applicable.
-42-
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.09.
The Trustee may resign and be discharged from the trust hereby created
with respect to the Notes by so notifying the Company in writing no later than
15 Business days prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company must
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.11 of this
Indenture or Section 310 of the TIA;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee is removed by the Company or by the Holders of not less
than a majority in aggregate principal amount of the Notes and such Holders do
not promptly appoint a successor Trustee (but in no event later than 15 Business
Days after such removal by the Holders), or if the Trustee resigns or a vacancy
exists in the office of the Trustee for any reason, the Company shall appoint a
successor Trustee.
Any Holder of Notes may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee if the
Trustee fails to comply with Section 7.11 of this Indenture.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation or removal, the resigning or removed Trustee, as the case may be,
may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall mail a notice of the successor Trustee's
succession to the Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.08 of this Indenture. Notwithstanding replacement of
the Trustee pursuant to this Section 7.09, the Company's obligations under
Section 7.08 of this Indenture shall continue for the benefit of the retiring
Trustee with respect to expenses, losses and liabilities incurred by it prior to
such replacement.
-43-
In case of the appointment hereunder of a successor Trustee, the
Company, the retiring Trustee and the Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which shall:
(i) contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, the Trustee all the rights,
powers, trusts and duties of the retiring Trustee to which the
appointment of such successor Trustee relates;
(ii) contain such provisions as shall be necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee; and
(iii) add to or change any of the provisions of this Indenture as shall
be necessary or desirable to provide for or facilitate the
administration of the trusts hereunder by the Trustees.
Upon the execution and delivery of such supplemental Indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Notes to which the
appointment of such successor Trustee relates.
SECTION 7.10. Successor Trustee by Merger, Etc.
Subject to Section 7.11 of this Indenture, if the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the successor entity without any further act shall be the successor
Trustee.
SECTION 7.11. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of Section
310(a)(1), (2) and (5) of the TIA. The Trustee shall at all times have a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition. The Trustee is subject to Section
310(b) of the TIA.
-44-
SECTION 7.12. Preferential Collection of Claims Against the Company.
The Trustee is subject to Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated therein.
SECTION 7.13. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any Officer of the Company actually received
such application, unless any such Officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
SECTION 7.14. Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement of any
relevant jurisdiction, the Trustee shall have the power and may execute and
deliver all instruments necessary to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees in such
capacity and for the benefit of the Holders, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the Trustee
may consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 7.11 and no notice to Holders of the appointment of any co-trustee or
separate trustee shall be required under Section 7.09 of this Indenture.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee under this Indenture and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee);
-45-
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VII.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Indenture on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) To the extent any co-trustee or separate trustee is
not an affiliate of the Trustee, the appointment of the co-trustee shall be
subject to the prior written consent of the Company, which consent shall not be
reasonably withheld.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
(a) This Indenture shall cease to be of further effect with
respect to Notes (except that the Company's and the Guarantors' obligations
under Section 7.08 and the Trustee's and Paying Agent's obligations under
Section 8.03 shall survive), and the Trustee, on demand of the Company, shall
execute proper instruments acknowledging the satisfaction and discharge of this
Indenture with respect to such series, when:
(1) either
-46-
(A) all outstanding Notes theretofore authenticated
and issued (other than destroyed, lost or stolen Notes that
have been replaced or paid) have been delivered to the Trustee
for cancellation; or
(B) all outstanding Notes not theretofore delivered
to the Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable on the Maturity Date within
one year, or
(iii) will be scheduled for redemption by their terms within
one year,
and the Company, in the case of clause (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause (i))
in trust for such purpose an amount which, together with earnings
thereon, will be sufficient to pay and discharge the entire
Indebtedness on such Notes for principal, premium, if any, and interest
to the date they are due and payable, or the Redemption Date, as the
case may be;
(2) the Company has paid all other sums payable by it
hereunder with respect to the Notes; and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to such series have been
complied with, together with an Opinion of Counsel to the same effect.
(b) The Company and the Guarantors may, subject as provided
herein, terminate all of their obligations under this Indenture with respect to
Notes (and the Guarantees thereof) if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments dedicated solely to the
benefit of the Holders (i) cash in an amount, or (ii) U.S. Government
Obligations or (iii) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay, without consideration of the reinvestment of any such amounts
and after payment of all taxes or other charges or assessments in
respect thereof payable by the Trustee, the principal of and premium,
if any, and interest on outstanding Notes on each date that such
principal, premium, if any, or interest is due and payable and to pay
all other sums payable by it hereunder; provided that the Trustee shall
have been irrevocably instructed to apply such money and/or the
proceeds of such U.S. Government Obligations to the payment of said
principal, premium, and interest with respect to the Notes of such
series as the same shall become due;
-47-
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Notes have been
complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (e) and
(f) of Section 6.01 are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration
of such period);
(4) the Company shall have delivered to the Trustee Opinions
of Counsel from nationally recognized counsel acceptable to the Trustee
or a tax ruling to the effect that the Holders of Notes of such series
will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of the Company's exercise of its option under this
Section 8.01(b) and will be subject to U.S. Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such option had not been exercised;
(5) such deposit and discharge will not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company or any Guarantor is a party or by which
it is bound;
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the passage of 91 days following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
In such event, this Indenture shall cease to be of further
effect with respect to Notes of such series (except as provided in the next
succeeding paragraph), and the Trustee, on demand of the Company, shall execute
proper instruments acknowledging satisfaction and discharge under this
Indenture.
However, the Company's obligations in Sections 2.04, 2.05,
2.06, 2.07, 2.10, 4.01, 4.02, 7.09 and 8.01, the Company's and the Guarantors'
obligations in Sections 5.01, 7.08, 8.04 and 10.01 and the Trustee's and Paying
Agent's obligations in Section 8.03 shall survive until the Notes of such series
are no longer outstanding. Thereafter, only the Company's and the Guarantors'
obligations in Section 7.08 and the Trustee's and Paying Agent's obligations in
Section 8.03 shall survive.
-48-
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee,
on demand of the Company, shall execute proper instruments acknowledging
satisfaction and discharge under this Indenture.
(c) The Company and the Guarantors may, subject as provided
herein, be released from their respective obligations to comply with, and shall
have no liability in respect of any term, condition or limitation, set forth in
Sections 4.07 and 5.01 with respect to the Notes of any series, and such
omission to comply with Sections 4.07 and 5.01 shall not constitute an Event of
Default under Section 6.01 ("Covenant Defeasance"), with the remainder of this
Indenture and such Notes unaffected thereby if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments dedicated solely to the
benefit of the Holders (i) cash in an amount, or (ii) U.S. Government
Obligations or (iii) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay, without consideration of the reinvestment of any such amounts
and after payment of all taxes or other charges or assessments in
respect thereof payable by the Trustee, the principal of and premium,
if any, and interest on all outstanding Notes on each date that such
principal, premium, if any, or interest is due and payable and to pay
all other sums payable by it hereunder; provided that the Trustee shall
have been irrevocably instructed to apply such money and/or the
proceeds of such U.S. Government Obligations to the payment of said
principal, premium, if any, and interest with respect to the Notes of
such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to the Covenant
Defeasance contemplated by this provision with respect to Notes of such
series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (e) and
(f) of Section 6.01 are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration
of such period);
-49-
(4) the Company shall have delivered to the Trustee Opinions
of Counsel from nationally recognized counsel acceptable to the Trustee
or a tax ruling to the effect that the Holders of Notes of such series
will not recognize income, gain or loss for U.S.or Federal income tax
purposes as a result of the Company's exercise of its option under this
Section 8.01(c) and will be subject to U.S. Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such option had not been exercised;
(5) such Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company or any Guarantor is a party or by which
it is bound;
(6) such Covenant Defeasance shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the passage of 91 days following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
In order to have money available on a payment date to pay
principal of or premium, if any, Liquidated Damages, if any or interest on the
Notes of such series, the U.S. Government Obligations shall be payable as to
principal or interest on or before such payment date in such amounts as will
provide the necessary money. U.S. Government Obligations shall not be callable
at the issuer's option.
SECTION 8.02. Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the
Company shall hold in trust money or U.S. Government Obligations deposited with
it pursuant to Section 8.01. It shall apply the deposited money and the money
from U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture to the payment of principal of and premium, if any, Liquidated
Damages, if any, and interest on Notes of the series with respect to which the
deposit was made.
SECTION 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon written request any excess money or securities held by them at any
time.
-50-
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium, if
any, Liquidated Damages, if any, or interest that remains unclaimed for two
years after the date upon which such payment shall have become due; provided,
however, that the Company shall have either caused notice of such payment to be
mailed to each Holder entitled thereto no less than 30 days prior to such
repayment or within such period shall have published such notice in a financial
newspaper of widespread circulation published in The City of New York. After
payment to the Company, Holders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee and the Paying Agent
with respect to such money shall cease.
SECTION 8.04. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 8.01 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company and the Guarantors under this
Indenture and the Notes of the applicable series shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.01 until such time as
the Trustee or the Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 8.01; provided, however, that
if the Company or any Guarantor has made any payment of principal of or interest
on any Notes of such series because of the reinstatement of its obligations, the
Company or such Guarantor, as the case may be, shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
Without the consent of any Holder, the Company and the Trustee may, at
any time, amend this Indenture or the Notes or enter into a supplemental
indenture to:
(a) provide for the assumption of the Company's obligations to
the Holders of Notes in the case of a merger or consolidation pursuant to
Article V of this Indenture;
(b) evidence the assumption by a successor corporation of the
Company's obligations, and covenants for the protection of the Holders of the
Notes;
(c) provide for or release Guarantees by Subsidiaries as
required by Section 10.03 of this Indenture;
-51-
(d) add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
(e) cure any ambiguity or correct any inconsistency in the
Indenture;
(f) make any change that does not adversely affect the rights
of Holders;
(g) modify or amend the Indenture to permit the qualification
of indentures supplemental thereto; or
(h) comply with any requirement of the SEC in connection with
qualification of the Indenture under the TIA or otherwise.
SECTION 9.02. With Consent of Holders.
Except as provided below in this Section 9.02, this Indenture or the
Notes may be amended or supplemented, and noncompliance in any particular
instance with any provision of this Indenture or the Notes may be waived, in
each case with the written consent of the Holders of not less than a majority in
principal amount of the then outstanding Notes.
Without the consent of each Holder of Notes, an amendment, supplement
or waiver under this Section 9.02 may not:
(a) extend the final maturity of the principal of any of the
Notes;
(b) reduce the principal amount of any of the Notes;
(c) reduce the rate or extend the time of payment of interest
on any of the Notes;
(d) reduce any amount payable on redemption of any of the
Notes;
(e) change the currency in which the principal of or interest
on any of the Notes is payable;
(f) impair the right to institute suit for the enforcement of
any payment on any of the Notes when due; or
(g) make any change in the percentage in principal amount of
outstanding Notes necessary for amendment to or waiver of compliance
with any provision of this Indenture or the Notes or for waiver of any
Events of Default.
-52-
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section 9.02 becomes effective,
the Company shall mail to Holders affected thereby a notice briefly describing
the amendment or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such amended or supplemental indenture or waiver.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note; provided, however, that unless a record date shall have been established
pursuant to Section 2.17 of this Indenture, any such Holder or subsequent Holder
may revoke the consent as to its Note or portion of a Note if the Trustee
receives written notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver becomes
effective on receipt by the Trustee of consents from the Holders of the
requisite percentage principal amount of the outstanding Notes, and thereafter
shall bind every Holder of Notes; provided, however, if the amendment,
supplement or waiver makes a change described in any of the clauses (a) through
(g) of Section 9.02 of this Indenture, the amendment, supplement or waiver shall
bind only each Holder of a Note which has consented to it and every subsequent
Holder of a Note or portion of a Note that evidences the same Indebtedness as
the consenting Holder's Note.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note:
(a) the Trustee may require the Holder of a Note to deliver
such Note to the Trustee, the Trustee may place an appropriate notation
on the Note about the changed terms and return it to the Holder and the
Trustee may place an appropriate notation on any Note thereafter
authenticated; or
-53-
(b) if the Company or the Trustee so determines, the Company
in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee to Sign Amendment, etc.
The Trustee shall sign any amendment authorized pursuant to this
Article IX if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing or refusing to sign such amendment, the Trustee shall be
entitled to receive and shall be fully protected in relying upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that such amendment
is authorized or permitted by this Indenture.
ARTICLE X
GUARANTEES OF SECURITIES
SECTION 10.01. Unconditional Guarantees.
(a) For value received, the Guarantors hereby fully,
irrevocably, unconditionally and absolutely guarantee to the Holders and to the
Trustee the due and punctual payment of the principal of and premium, if any,
and interest on the Notes and all other amounts due and payable under this
Indenture and the Notes by the Company (including, without limitation, all costs
and expenses (including reasonable legal fees and disbursements) incurred by the
Trustee or the Holders in connection with the enforcement of this Indenture, the
Notes and the Guarantees) (collectively, the "Indenture Obligations"), when and
as such principal, premium, if any, Notes and interest and such other amounts
shall become due and payable, whether at maturity, upon redemption or by
declaration of acceleration or otherwise, according to the terms of the Notes
and this Indenture. The guarantees by the Guarantors set forth in this Article X
are referred to herein as the "Guarantees." Without limiting the generality of
the foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Indenture Obligations and would be owed by the Company
under this Indenture and the Notes but for the fact that they are unenforceable,
reduced, limited, impaired, suspended or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Company.
-54-
(b) Failing payment when due of any amount guaranteed pursuant
to the Guarantees, for whatever reason, each Guarantor will be obligated to pay
the same immediately to the Trustee, without set-off or counterclaim or other
reduction whatsoever (whether for taxes, withholding or otherwise). Each
Guarantee hereunder is intended to be a general, unsecured, senior obligation of
each Guarantor and will rank pari passu in right of payment with all
Indebtedness of each Guarantor that is not, by its terms, expressly subordinated
in right of payment to the Guarantees of such Guarantor. Each Guarantor hereby
agrees that its obligations hereunder shall be full, irrevocable, unconditional
and absolute, irrespective of the validity, regularity or enforceability of the
obligations and liabilities of any other obligor with respect to the Notes, the
Guarantees or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or thereof
with respect to the same, the recovery of any judgment against the Company, or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of any Guarantor. Each Guarantor hereby agrees that in the
Event of a Default in payment of the principal of or premium, if any, or
interest on the Notes or any other amounts payable under this Indenture and the
Notes by the Company, whether at maturity, upon redemption or by declaration of
acceleration or otherwise, legal proceedings may be instituted by the Trustee on
behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms
and conditions set forth in this Indenture, directly against each Guarantor to
enforce the Guarantees without first proceeding against the Company.
(c) To the fullest extent permitted by applicable law, the
obligations of each Guarantor under this Article X shall be as aforesaid full,
irrevocable, unconditional and absolute and shall not be impaired, modified,
discharged, released or limited by any occurrence or condition whatsoever,
including, without limitation, (i) any compromise, settlement, release, waiver,
renewal, extension, indulgence or modification of, or any change in, any of the
obligations and liabilities of any other obligor with respect to the Notes
contained in any of the Notes or this Indenture, (ii) any impairment,
modification, release or limitation of the liability of the Company, any
Guarantor or any of their respective estates in bankruptcy, or any remedy for
the enforcement thereof, resulting from the operation of any present or future
provision of any applicable Bankruptcy Law, as amended, or other statute or from
the decision of any court, (iii) the assertion or exercise by the Company, any
Guarantor or the Trustee of any rights or remedies under any of the Notes or
this Indenture or its delay in or failure to assert or exercise any such rights
or remedies, (iv) the assignment or the purported assignment of any property as
security for any of the Notes, including all or any part of the rights of the
Company or any Guarantor under this Indenture, (v) the extension of the time for
payment by the Company or any Guarantor of any payments or other sums or any
part thereof owing or payable under any of the terms and provisions of any of
the Notes or this Indenture or of the time for performance by the Company or any
Guarantor of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification
or amendment (whether material or otherwise) of any duty, agreement or
obligation set forth in this Indenture of any other obligor with respect to the
Notes, (vii) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar proceeding affecting, the Company or any of the Guarantors
or any of their respective assets, or the disaffirmance of any of the Notes, the
Guarantees or this Indenture in any such proceeding, (viii) the release or
discharge of the Company or any Guarantor from the performance or observance of
any agreement, covenant, term or condition contained in any of such instruments
by operation of law, (ix) the unenforceability of any of the obligations of any
of the other obligors under the Notes, the Guarantees or this Indenture, (x) any
change in the name, business, capital structure, corporate existence, or
ownership of the Company or the Guarantor, or (xi) any other circumstance which
might otherwise constitute a defense available to, or a legal or equitable
discharge of, a surety or any Guarantor.
-55-
(d) Each Guarantor hereby (i) waives diligence, presentment,
demand of payment, notice of acceptance, filing of claims with a court in the
event of the merger, insolvency or bankruptcy of the Company or any Guarantor,
and all demands and notices whatsoever, (ii) acknowledges that any agreement,
instrument or document evidencing the Guarantees may be transferred and that the
benefit of its obligations hereunder shall extend to each holder of any
agreement, instrument or document evidencing the Guarantees without notice to
them and (iii) covenants that its Guarantees will not be discharged except by
complete performance of the Guarantees or of the obligations guaranteed thereby.
Each Guarantor further agrees that if at any time all or any part of any payment
theretofore applied by any Person to any Guarantee is, or must be, rescinded or
returned for any reason whatsoever, including, without limitation, the
insolvency, bankruptcy or reorganization of any Guarantor, such Guarantee shall,
to the extent that such payment is or must be rescinded or returned, be deemed
to have continued in existence notwithstanding such application, and the
Guarantees shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
(e) Each Guarantor shall be subrogated to all rights of the
Holders and the Trustee against the Company in respect of any amounts paid by
any Guarantor pursuant to the provisions of this Indenture; provided, however,
that no Guarantor shall be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation with respect to any of
the Notes until all of the Notes and the Guarantees thereof shall have been paid
in full or discharged.
(f) A director, officer, employee or stockholder, as such, of
any Guarantor shall not have any liability for any obligations of such Guarantor
under this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the
part of the Trustee or the Holders, any right, power, privilege or remedy under
this Article X and the Guarantees shall operate as a waiver thereof, nor shall
any single or partial exercise of any rights, power, privilege or remedy
preclude any other or further exercise thereof, or the exercise of any other
rights, powers, privileges or remedies. The rights and remedies herein provided
for are cumulative and not exclusive of any rights or remedies provided in law
or equity. Nothing contained in this Article X shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article VI or to pursue any rights or remedies hereunder or
under applicable law.
-56-
SECTION 10.02. Execution and Delivery of Notation of Guarantees.
To further evidence the Guarantees, each Guarantor hereby
agrees that on the date of this Indenture a notation of such Guarantees shall be
endorsed on each Note authenticated and delivered by the Trustee.
Each Guarantor hereby agrees that its Guarantee shall remain
in full force and effect notwithstanding any failure to endorse on each Security
a notation relating to the Guarantee thereof.
If an Officer of any Guarantor whose signature is on this
Indenture or a Note no longer holds that office, or if any other or additional
Person shall have become a "Guarantor" hereunder in accordance with Section 5.01
or 5.02 hereof, at the time the Trustee authenticates such Note or at any time
thereafter, such Guarantor's Guarantee of such Security shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of such Guarantor and each other Person
which may at such time constitute a "Guarantor" hereunder.
SECTION 10.03. Releases Following Sale of Assets.
In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all or
substantially all of the Capital Stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Restricted Subsidiary of the Company, then such Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise, of all
of the Capital Stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or substantially
all of the assets of such Guarantor) will be released and relieved of any
obligations under its Guarantee. Upon delivery by the Company to the Trustee of
an Officers' Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Company in accordance with the provisions
of this Indenture, the Trustee will execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations under its
Guarantee.
-57-
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA which are
required to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
SECTION 11.02. Notices.
Any notice or communication to the Company or the Trustee is duly given
if in writing and delivered in person or mailed by first-class mail to the
address set forth below:
If to the Company, addressed to the Company:
Pall Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Treasurer
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
If to the Trustee or Paying Agent in The City of New York:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
-58-
Any notice or communication to a Holder shall be mailed by first-class
mail to his address shown on the Register kept by the Registrar. Failure to mail
a notice or communication to a Holder or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except that notice to the Trustee shall only be effective upon
receipt thereof by the Trustee.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the TIA with
other Holders with respect to their rights under the Notes or this Indenture.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of Section 312(c) of the TIA.
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture (except for the first issuance of Notes), the
Company shall furnish to the Trustee:
(i) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 of this Indenture) stating that,
in the opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed action
have been complied with; and
(ii) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 of this Indenture) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate (other than certificates provided pursuant to Section
4.04 of this Indenture) or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition;
-59-
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such person, he
or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificate of public
officials.
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or for a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York are not required or authorized to be open.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 11.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
SECTION 11.09. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
-60-
SECTION 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11. Successors.
All agreements of the Company under the Notes and this Indenture shall
bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.12. Severability.
In case any provision in the Notes or in this Indenture is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.13. Counterpart Originals.
This Indenture may be signed in one or more counterparts. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.14. No Personal Liability.
No director, officer, employee, incorporator, Affiliate or holder of
Capital Stock of the Company shall have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations. Each Holder of Notes, by accepting a
Note, waives and releases all such liability. The waiver and release shall be
part of the consideration for the issuance of the Notes.
-61-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
PALL CORPORATION
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Chairman and Chief Executive
Officer
GUARANTORS:
PALL AEROPOWER CORPORATION
MEDSEP CORPORATION
PALL INTERNATIONAL CORPORATION
PALL-PASS, U.S. INC.
PALL PUERTO RICO, INC.
PALL BIOMEDICAL INC.
XXXXXX SCIENCES, INC.
XXXXXXX ASSOCIATES INC.
ALLOSEP, INC.
MEMTEC FINANCE, INC.
PALL ACQUISITION, INC.
PALL FILTRATION AND SEPARATIONS GROUP,
INC.
XXXXXX FILTERSYSTEMS, INC.
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
Title: Treasurer of Each of the
Foregoing Entities
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
-62-
EXHIBIT A
[Form of Initial Note]
[FACE OF NOTE]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR 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, A NEW YORK CORPORATION ("DTC"), TO ISSUER 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 IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.09 OF THE INDENTURE REFERRED TO HEREIN.(1)
----------
(1) This legend should be included only if the Note is issued in global form.
A-1
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN (OR THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUER THAT THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE THERETO
UNDER RULE 144(k) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY
(THE "RESALE RESTRICTION TERMINATION DATE") OTHER THAN (1) TO EITHER ISSUER OR
ITS SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" WITHIN THE MEANING OF
RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY
THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY IF THIS SECURITY IS NOT IN BOOK-ENTRY FORM), (3) TO A NON-"U.S.
PERSON" IN AN "OFFSHORE TRANSACTION" (AS SUCH TERMS ARE DEFINED IN REGULATION S
UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS SECURITY IS NOT IN BOOK-ENTRY
FORM), (4) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, IF AVAILABLE, OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY
OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS
OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE ISSUER OR THE TRUSTEE FOR THE
SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER PURSUANT TO CLAUSE
(4) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION
TERMINATION DATE.
A-2
PALL CORPORATION
% Senior Note due 2012
CUSIP No. $
PALL CORPORATION, a New York corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to CEDE & CO., or its registered assigns, the
principal sum of TWO HUNDRED and EIGHTY MILLION DOLLARS ($280,000,000) on August
1, 2012.
Interest Payment Dates: on February 1 and August 1, commencing
February 1, 2003.
Regular Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be executed
manually or by facsimile by its duly authorized officers.
Dated: August 6, 2002 PALL CORPORATION
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
Trustee's Certificate of Authentication
This is one of the Notes referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
Dated: August 6, 2002
A-4
[REVERSE SIDE OF NOTE](2)
PALL CORPORATION
6% Senior Note due 2012
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest
PALL CORPORATION, a New York corporation (such entity, and its
successors and assigns under the Indenture, the "Company"), promises to pay
interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semi-annually on February 1 and August 1 of each
year, commencing February 1, 2003. Interest on the Notes will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from August 6, 2002. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate borne by the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest on the Notes (except defaulted interest)
to the Persons who are registered holders of Notes at the close of business on
the record date immediately preceding the interest payment date even if Notes
are canceled on registration of transfer or registration of exchange after the
record date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company will pay to the Paying Agent the principal and premium, if
any, of and interest on the Notes in money of the United States that at the time
of payment is legal tender for payment of public and private debts. The Company
may, however, at its option, pay principal and premium, if any, and interest by
U.S. Dollar check drawn on a bank in The City of New York mailed to the address
of the Holder as such address shall appear in the Register, provided, however,
that if such Holder has submitted an application to the Registrar not later than
the relevant record date, the Company shall wire transfer in immediately
available funds such payment in lieu of a check, which application shall remain
in effect until the Holder notifies, in writing, the Registrar to the contrary.
----------
(2) Appropriate modifications shall be made to reflect the terms of Additional
Notes.
A-5
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
may act as Paying Agent, Registrar, co-Registrar or transfer agent.
4. Indenture
The Company issued the Notes under an Indenture dated as of August 1,
2002 (the "Indenture"), between the Company and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss. 77aaa-77bbbb) as
in effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Notes are subject to all such terms, and Holders are referred to
the Indenture and the TIA for a statement of those terms. Any conflict between
this Note and the Indenture will be governed by the Indenture.
5. Optional Redemption
The Notes may be redeemed at the Company's option, in whole or in part,
at any time or from time to time, on at least 30 days but not more than 60 days'
prior notice, at a price equal to the greater of: (i) 100% of the principal
amount being redeemed on the Redemption Date, and (ii) the Make Whole Amount (as
defined in the Indenture), plus, in each case, accrued and unpaid interest, if
any, on the Notes to the Redemption Date.
Unless the Company defaults in its payment of the Redemption Price, on
and after the Redemption Date, interest will cease to accrue on the Notes or
portions of the Notes called for redemption and those Notes will cease to be
outstanding.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at his registered address. Notes in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. If a
notice or communication is sent in the manner provided in the Indenture, it is
duly given, whether or not the addressee receives it. Failure to send a notice
or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
A-6
7. Restrictive Covenants
The Indenture imposes certain limitations on the ability of the Company
among other things, to create liens. In addition, the Indenture imposes certain
limitations on the ability of a Subsidiary to Guarantee or secure the payment of
Indebtedness of the Company under the Company's Credit Facility and the Company
to engage in mergers and consolidations or transfers of all or substantially all
of its assets. The Indenture requires the Company to deliver to the Trustee an
Officers' Certificate within 90 days after the end of each fiscal year stating
whether or not the signers thereof know of any Default or Event of Default under
such restrictive covenants.
8. Denominations; Transfer; Exchange
The Notes are in registered form, without coupons, and in denominations
of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements or transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture,
including any transfer tax or other similar governmental charge payable in
connection therewith. The Registrar need not register the transfer of or
exchange any Notes selected for redemption (except, in the case of a Note to be
redeemed in part, the portion of the Note not to be redeemed) or any Notes for a
period of 15 days before a selection of Notes to be redeemed or 15 days before
an interest payment date.
9. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it
for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property or similar law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal and interest on the Notes to redemption or maturity, as the case
may be.
A-7
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the consent of the Holders of not
less than a majority in principal amount outstanding of the Notes and (ii) any
past default or noncompliance with any provision may be waived with the consent
of the Holders of not less than a majority in principal amount outstanding of
the Notes. Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder, the Company and the Trustee may amend the Indenture or
the Notes to cure any ambiguity or correct any inconsistency, to comply with
Article VI of the Indenture, to add Guarantees or release Guarantors when
permitted by the Indenture, to add additional covenants or surrender rights and
powers conferred on the Company, to modify or amend the Indenture to permit the
qualification of the Indenture under the TIA or otherwise, to make any change
that does not adversely affect the rights of any Holder or to comply with any
request of the SEC in connection with qualifying the Indenture under the TIA.
13. Defaults and Remedies
Events of Default include those as set forth in Article VI of the
Indenture.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or any of its Affiliates and may otherwise deal with the Company
or any of its Affiliates with the same rights it would have if it were not
Trustee.
15. No Personal Liability
No director, officer, employee, incorporator, Affiliate or holder of
Capital Stock of the Company shall have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations. Each Holder of Notes, by accepting a
Note, waives and releases all such liability. The waiver and release shall be
part of the consideration for the issuance of the Notes.
16. Governing Law
The Indenture and the Notes shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
applicable principles of conflict of laws to the extent that the application of
the laws of another jurisdiction would be required thereby.
A-8
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge to the Holder a copy of the Indenture. Requests may be made as follows:
PALL CORPORATION
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attention: Treasurer
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below and have your signature
guaranteed: (I) or (we) assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Dated: Your Name:
----------------- ---------------------------------------
(Print your name exactly as it appears
on the face of this Note)
Your Signature:
------------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-10
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL NOTES OTHER
THAN EXCHANGE NOTES, AND UNLEGENDED PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.09 of the Indenture shall have
been satisfied.
Date:
-------------- -----------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
Signature Guarantee:
--------------------------------------------------------
(Signature must be guaranteed)
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-11
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion, in each case for investment and not with a view to
distribution, and that it and any such account is a "Qualified Institutional
Buyer" within the meaning of Rule 144A under the Securities Act of 1933 and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
----------------- ----------------------------------------
NOTICE: To be executed by an executive
officer
A-12
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE(3)
The following exchanges of a part of this Global Note for Physical
Notes have been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase following such authorized Signatory
in Principal Amount in Principal Amount decrease of Trustee or Note
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ------------- ---------
----------
(3) This schedule should be included only if the Note is issued in global form.
A-13
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject
to the provisions in the Indenture dated as of August 1, 2002 (the "Indenture")
among Pall Corporation (the "Company"), the Guarantors thereto and The Bank Of
New York, as trustee (the "Trustee"), (a) the due and punctual payment of the
principal of, premium, if any, and interest on the Noes (as defined in the
Indenture), whether at maturity, by acceleration, redemption or otherwise, the
due and punctual payment of interest on overdue principal of and interest on the
Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article X
of the Indenture and reference is hereby made to the Indenture for the precise
terms of the Guarantee. Each Holder of a Note, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the
Trustee, on behalf of such Holder, to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and (c)
appoints the Trustee attorney-in-fact of such Holder for such purpose.
EXHIBIT B
[Form of Certificate to Be Delivered in
Connection with Transfers to non-QIB Institutional Accredited Investors]
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Pall Corporation
----------------
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate principal
amount of % Senior Notes due 2012 (the "Notes") of Pall Corporation (the
"Company"), we confirm that:
(1) We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act")) and have such knowledge and experience
in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic
risk of our or their investment.
(2) We are acquiring the Notes purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
(3) We are not acquiring the Notes with a view to distribution
thereof or with any present intention of offering or selling any Notes,
except as permitted below; provided that the disposition of our
property and the property of any accounts for which we are acting as
fiduciary will remain at all times within our control.
(4) We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture dated as of [DATE] (the "Indenture") relating to the Notes
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes except in compliance with such
restrictions and conditions and the Securities Act.
B-1
(5) We understand that the offer and sale of the Notes have
not been registered under the Securities Act, and that the Notes may
not be offered or sold except as permitted in the following sentence.
We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Notes
prior to the expiration of the holding period applicable to sales of
the Notes under Rule 144(k) of the Securities Act, we will do so only
(A) to the Company or any Subsidiary thereof, (B) to a "Qualified
Institutional Buyer" (as defined in Rule 144A under the Securities Act)
in compliance with Rule 144A under the Securities Act, (C) to an
institutional "accredited investor" (as defined above) that, prior to
such transfer, furnishes to you a signed letter substantially in the
form of this letter and, an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act,
(D) outside the United States in accordance with Rule 904 under the
Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available) or (F)
pursuant to a registration statement which has been declared effective
under the Securities Act (and continues to be effective at the time of
such transfer), and we further agree to provide to any Person
purchasing any of the Notes from us a notice advising such purchaser
that resales of the Notes are restricted as stated herein.
(6) We understand that, on any proposed resale of any Notes,
we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will be in certificated form and will bear a
legend to the foregoing effect.
Each of the Company, the Trustee and the initial purchasers of the
Notes are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
-----------------------------------
Name:
Title:
B-2
EXHIBIT C
[Form of Certificate to Be Delivered
in Connection with Transfers Pursuant to Regulation S]
[Date]
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Pall Corporation
-----------------
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal
amount of % Senior Notes due 2012 (the "Notes") of Pall Corporation (the
"Company"), we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the U.S. Securities Act of 1933, as amended
(the "Securities Act") and, accordingly, we represent that:
(1) the offer of the Notes was not made to a Person in the
United States;
(2) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act, as applicable;
and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
C-1
Each of the Company, the Trustee and the initial purchasers of the
Notes are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S under the Securities Act.
Very truly yours,
By:
------------------------------------
Name:
Title:
C-2
