EXHIBIT 4.1
EXECUTION COPY
XXXXXX DRILLING COMPANY
AND
THE GUARANTORS FROM TIME
TO TIME PARTIES HERETO
$175,000,000
9 5/8% SENIOR NOTES DUE 2013
-------------------------------------
INDENTURE
Dated as of October 10, 2003
-------------------------------------
-------------------------------------
JPMORGAN CHASE BANK
as Trustee
-------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.....................................................1
Section 1.01. Definitions..............................................................................1
Section 1.02. Other Definitions.......................................................................18
Section 1.03. One Class of Securities.................................................................18
Section 1.04. Trust Indenture Act.....................................................................18
Section 1.05. Rules of Construction...................................................................19
ARTICLE II THE NOTES....................................................................................19
Section 2.01. Issuance of Additional Notes............................................................19
Section 2.02. Payments by Company by Wire Transfer....................................................20
Section 2.03. Form and Dating.........................................................................20
Section 2.04. Execution and Authentication............................................................21
Section 2.05. Registrar and Paying Agent..............................................................21
Section 2.06. Paying Agent to Hold Money in Trust.....................................................21
Section 2.07. Holder Lists............................................................................22
Section 2.08. Transfer and Exchange...................................................................22
Section 2.09. Replacement Notes.......................................................................35
Section 2.10. Outstanding Notes.......................................................................36
Section 2.11. Treasury Notes..........................................................................36
Section 2.12. Temporary Notes.........................................................................36
Section 2.13. Cancellation............................................................................36
Section 2.14. Defaulted Interest......................................................................37
Section 2.15. CUSIP Numbers...........................................................................37
ARTICLE III REDEMPTION AND PREPAYMENT...................................................................37
Section 3.01. Notices to Trustee......................................................................37
Section 3.02. Selection of Notes to Be Redeemed.......................................................37
Section 3.03. Notice of Redemption....................................................................38
Section 3.04. Effect of Notice of Redemption..........................................................39
Section 3.05. Deposit of Redemption Price.............................................................39
Section 3.06. Notes Redeemed in Part..................................................................39
Section 3.07. Optional Redemption.....................................................................39
Section 3.08. Mandatory Redemption....................................................................40
Section 3.09. Offer to Purchase by Application of Excess Proceeds.....................................40
ARTICLE IV COVENANTS....................................................................................42
Section 4.01. Payment of Notes........................................................................42
Section 4.02. Maintenance of Office or Agency.........................................................42
Section 4.03. Reports.................................................................................43
Section 4.04. Compliance Certificate..................................................................44
Section 4.05. Taxes...................................................................................44
Section 4.06. Stay, Extension and Usury Laws..........................................................45
PAGE
Section 4.07. Restricted Payments.....................................................................45
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries..........................47
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock..............................48
Section 4.10. Asset Sales.............................................................................51
Section 4.11. Transactions with Affiliates............................................................52
Section 4.12. Liens...................................................................................53
Section 4.13. Line of Business........................................................................53
Section 4.14. Corporate Existence.....................................................................53
Section 4.15. Offer to Repurchase Upon Change of Control..............................................54
Section 4.16. Limitation on Sale and Leaseback Transactions...........................................55
Section 4.17. Payments for Consent....................................................................55
ARTICLE V SUCCESSORS....................................................................................56
Section 5.01. Merger, Consolidation, or Sale of Assets................................................56
Section 5.02. Successor Corporation Substituted.......................................................56
ARTICLE VI DEFAULTS AND REMEDIES........................................................................57
Section 6.01. Events of Default.......................................................................57
Section 6.02. Acceleration............................................................................58
Section 6.03. Other Remedies..........................................................................59
Section 6.04. Waiver of Past Defaults.................................................................59
Section 6.05. Control by Majority.....................................................................59
Section 6.06. Limitation on Suits.....................................................................59
Section 6.07. Rights of Holders to Receive Payment....................................................60
Section 6.08. Collection Suit by Trustee..............................................................60
Section 6.09. Trustee May File Proofs of Claim........................................................60
Section 6.10. Priorities..............................................................................60
Section 6.11. Undertaking for Costs...................................................................61
ARTICLE VII TRUSTEE.....................................................................................61
Section 7.01. Duties of Trustee.......................................................................61
Section 7.02. Rights of Trustee.......................................................................62
Section 7.03. Individual Rights of Trustee............................................................63
Section 7.04. Trustee's Disclaimer....................................................................63
Section 7.05. Notice of Defaults......................................................................64
Section 7.06. Reports by Trustee to Holders of the Notes..............................................64
Section 7.07. Compensation and Indemnity..............................................................64
Section 7.08. Replacement of Trustee..................................................................65
Section 7.09. Successor Trustee by Merger, etc........................................................66
Section 7.10. Eligibility; Disqualification...........................................................66
Section 7.11. Preferential Collection of Claims Against Company.......................................66
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE...................................................66
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance................................66
Section 8.02. Legal Defeasance and Discharge..........................................................66
Section 8.03. Covenant Defeasance.....................................................................67
Section 8.04. Conditions to Legal or Covenant Defeasance..............................................67
ii
PAGE
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.......................................................68
Section 8.06. Repayment to Company....................................................................69
Section 8.07. Reinstatement...........................................................................69
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER.............................................................70
Section 9.01. Without Consent of Holders..............................................................70
Section 9.02. With Consent of Holders.................................................................71
Section 9.03. Compliance with Trust Indenture Act.....................................................72
Section 9.04. Revocation and Effect of Consents.......................................................72
Section 9.05. Notation on or Exchange of Notes........................................................72
Section 9.06. Trustee to Sign Amendments, etc.........................................................72
ARTICLE X SATISFACTION AND DISCHARGE....................................................................73
Section 10.01. Satisfaction and Discharge.............................................................73
Section 10.02. Deposited Cash and Government Securities...............................................74
Section 10.03. Repayment to Company...................................................................74
Section 10.04. Reinstatement..........................................................................74
ARTICLE XI SUBSIDIARY GUARANTEES........................................................................74
Section 11.01. Guarantee..............................................................................74
Section 11.02. Subordination on Guarantor Liability...................................................75
Section 11.03. Guarantors May Consolidate, etc., on Certain Terms.....................................76
Section 11.04. Releases of Subsidiary Guarantee.......................................................77
Section 11.05. Additional Subsidiary Guarantees.......................................................77
ARTICLE XII MISCELLANEOUS...............................................................................78
Section 12.01. Trust Indenture Act Controls...........................................................78
Section 12.02. Notices................................................................................78
Section 12.03. Communication by Holders with Other Holders............................................79
Section 12.04. Certificate and Opinion as to Conditions Precedent.....................................79
Section 12.05. Statements Required in Certificate or Opinion..........................................79
Section 12.06. Rules by Trustee and Agents............................................................80
Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders...............80
Section 12.08. Governing Law..........................................................................80
Section 12.09. No Adverse Interpretation of Other Agreements..........................................80
Section 12.10. Successors.............................................................................80
Section 12.11. Severability...........................................................................80
Section 12.12. Counterpart Originals..................................................................80
Section 12.13. Table of Contents, Headings, etc.......................................................80
iii
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
310(a)(1).................................................................. 7.10
(a)(2).................................................................. 7.10
(a)(3).................................................................. N.A.
(a)(4).................................................................. N.A.
(a)(5).................................................................. 7.10
(b)..................................................................... 7.10
(c)..................................................................... N.A.
311(a)..................................................................... 7.11
(b)..................................................................... 7.11
(c)..................................................................... N.A.
312(a)..................................................................... 2.07
(b)..................................................................... 12.03
(c)..................................................................... 12.03
313(a)..................................................................... 7.06
(b)(1).................................................................. 12.03
(b)(2).................................................................. 7.06, 7.07
(c)..................................................................... 7.06, 12.02
(d)..................................................................... 7.06
314(a)..................................................................... 4.03, 12.05
(b)..................................................................... N.A.
(c)(1).................................................................. 12.04
(c)(2).................................................................. 12.04
(c)(3).................................................................. N.A.
(d)..................................................................... N.A.
(e)..................................................................... 12.05
(f)..................................................................... N.A.
315(a)..................................................................... 7.01
(b)..................................................................... 7.05, 12.02
(c)..................................................................... 7.01
(d)..................................................................... 7.01
(e)..................................................................... 6.11
316(a) (last sentence)..................................................... 2.11
(a)(1)(A)............................................................... 6.05
(a)(1)(B)............................................................... 6.04
(a)(2).................................................................. N.A.
(b)..................................................................... 6.07
(c)..................................................................... 2.14
317(a)(1).................................................................. 6.08
(a)(2).................................................................. 6.09
(b)..................................................................... 2.06
318(a)..................................................................... 12.01
(b)..................................................................... N.A.
(c)..................................................................... 12.01
N.A. means not applicable
*This Cross-Reference Table is not part of the
Indenture
iv
INDENTURE, dated as of October 10, 2003, between Xxxxxx
Drilling Company, a Delaware corporation (the "Company"), the subsidiary
guarantors from time to time parties hereto (collectively, the "Guarantors") and
JPMorgan Chase Bank, a
New York banking corporation, as trustee (the "Trustee").
The parties listed above agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 9?%
Senior Notes due 2013 (the "Initial Notes") and the 9?% Senior Notes due 2013 if
and when issued in the Exchange Offer (the "New Notes" and, together with the
Initial Notes, the "Notes").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means one or more global notes in the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will represent the aggregate principal amount of
the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Restricted Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"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 purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the Voting Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by" and "under
common control with" have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights including by means of a merger,
consolidation or similar transaction; provided that the sale, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Restricted Subsidiaries taken as a whole will be governed by Section 4.15
and/or Section 5.01 hereof and not by Section 4.10 hereof, and (ii) the issuance
of Equity Interests in any of the Company's Restricted Subsidiaries or the sale
of Equity Interests in any of
1
its Subsidiaries (other than directors' qualifying shares). Notwithstanding the
preceding, the following items shall not be deemed to be Asset Sales: (i) any
single transaction or series of related transactions that involves assets having
a fair market value of less than $2.0 million, (ii) a transfer of assets between
or among the Company and its Restricted Subsidiaries, (iii) an issuance of
Equity Interests by a Restricted Subsidiary to the Company or to another
Restricted Subsidiary, (iv) the sale or lease of equipment, inventory, accounts
receivable, services or other assets in the ordinary course of business or the
sale of inventory to any joint venture, in which the Company owns directly or
indirectly at least 50% of the Equity Interests, for resale by such joint
venture to its customers in the ordinary course of business of its business, (v)
the sale or other disposition of cash or Cash Equivalents, (vii) a Restricted
Payment or Permitted Investment that is permitted by Section 4.07 hereof (vii)
dispositions in connection with Permitted Liens, (vii) the sale of a rig built
by the Company or any of its Restricted Subsidiaries for the purpose of sale to
a customer where the sale proceeds are recorded in the Company's consolidated
financial statements as operating income in accordance with generally accepted
accounting principles in the United States, (ix) sales of damaged, worn-out or
obsolete equipment or assets that, in the Company's reasonable judgment, are
either (A) no longer used or (B) no longer useful in the business of the Company
or its Restricted Subsidiaries, (x) any trade or exchange by the Company or any
Restricted Subsidiary of one or more drilling rigs for one or more other
drilling rigs owned or held by another Person, provided that (A) the fair market
value of the drilling rig or rigs traded or exchanged by the Company or such
Restricted Subsidiary (including any cash or Cash Equivalents to be delivered by
the Company or such Restricted Subsidiary) is reasonably equivalent to the fair
market value of the drilling rig or rigs (together with any cash or Cash
Equivalents) to be received by the Company or such Restricted Subsidiary, in
each case as determined as provided in the final paragraph of Section 4.07
hereof and (B) such exchange is approved by a majority of the disinterested
members of the Board of Directors of the Company and (xi) any transfer by the
Company or any Restricted Subsidiary to its customers of drill pipe, tools and
associated drilling equipment utilized in connection with a drilling contract
for the employment of a drilling rig in the ordinary course of business and
consistent with past practice.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Sections 13(d) and 14(d) of the Exchange Act), such "person" will be deemed to
have beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" have
correlative meanings.
2
"Board of Directors" means (i) with respect to a corporation,
the board of directors of the corporation, (ii) with respect to a partnership,
the Board of Directors of the general partner of the partnership, and (iii) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Business Day" means each day that is not a Saturday, Sunday
or other day on which banking institutions in
New York,
New York are authorized
or required by law to close.
"Capital Lease Obligation" means, at the time any
determination is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (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.
"Cash Equivalents" means (i) United States dollars or foreign
currency, (ii) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than
one year from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case, with any lender party to the Credit
Agreement (or any affiliate of such lender party meeting such requirements) or
with any commercial bank organized under the laws of any country that is a
member of the Organization for Economic Cooperation and Development (or any
affiliate of such commercial bank meeting such requirements), having capital and
surplus in excess of $500.0 million and a Xxxxxxxx Bank Watch Rating of "B" or
better; (iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) above
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, (v) commercial paper having the highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Services and in
each case maturing within 270 days after the date of acquisition and (vi) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (i) through (v) of this definition.
"Change of Control" means the occurrence of any of the
following: (i) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole to any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), (ii) the
adoption of a plan by the stockholders of the Company relating to the
liquidation or dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
3
result of which is that any "person" becomes the "beneficial owner" (as such
terms are defined in Sections 13(d) and 14(d) under the Exchange Act), directly
or indirectly, of more than 50% of the voting power of the Voting Stock of the
Company, or (iv) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors.
"Clearstream" means Clearstream Banking S.A.
"Company" means Xxxxxx Drilling Company and any and all
successors thereto.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus (i) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Subsidiaries in connection with an Asset
Sale, to the extent such losses were deducted in computing such Consolidated Net
Income; plus (ii) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income; plus
(iii) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings), and net of the
effect of all payments made or received pursuant to Hedging Obligations incurred
with respect to Indebtedness, to the extent that any such expense was deducted
in computing such Consolidated Net Income; plus (iv) depreciation, amortization
(including amortization of intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash expenses
(including impairment charges recorded in connection with the application of
Financial Accounting Standard No. 142 "Goodwill and Other Intangibles" but
excluding any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such Person and its
Subsidiaries for such period to the extent that such depreciation, amortization
and other non-cash expenses were deducted in computing such Consolidated Net
Income; plus (v) all extraordinary, unusual or non-recurring items of loss or
expense; minus (vi) all extraordinary, unusual or non-recurring items of gain or
revenue; minus (vii) non-cash items increasing such Consolidated Net Income for
such period, other than the accrual of revenue in the ordinary course of
business, in each case, on a consolidated basis and determined in accordance
with GAAP. Notwithstanding the foregoing, amounts in clauses (i), (ii), (iv),
(v) and (vi) relating to any Restricted Subsidiary that is not a Guarantor will
be added to Consolidated Net Income to compute Consolidated Cash Flow only to
the extent (and in the same proportion) that the Net Income of such Restricted
Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be paid
as a dividend to the Company by such Restricted Subsidiary without any prior
governmental approval (that has not been obtained) and by operation of the terms
of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a
4
consolidated basis determined in accordance with GAAP; provided that (i) the Net
Income (but not loss) of any Person that is not a Restricted Subsidiary or that
is accounted for by the equity method of accounting shall be included only to
the extent of the amount of dividends or distributions paid in cash to the
specified Person or a Restricted Subsidiary thereof, (ii) the Net Income of any
Restricted Subsidiary that is not a Guarantor will be excluded to the extent
that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval (that has not been obtained)
or, directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, and
(iii) the cumulative effect of a change in accounting principles will be
excluded.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date Notes are first issued under this
Indenture or
(ii) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of the Board
of Directors at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.02 hereof or such other address
as to which the Trustee may give notice in writing to the Company.
"Credit Agreement" means that certain Credit Agreement, dated
as of October 10, 2003, by and among the Company, the several banks and other
financial institutions or entities from time to time parties thereto, Xxxxxx
Brothers Inc. and Deutsche Bank Securities Inc., as joint advisors, joint lead
arrangers, and joint bookrunners, Deutsche Bank Securities Inc., as syndication
agent, Bank of America, N.A., as documentation agent, Deutsche Bank Trust
Company Americas, as collateral agent, and Xxxxxx Commercial Paper Inc., as
administrative agent, providing for up to $100.0 million of term loan borrowings
and $50.0 million of revolving credit borrowings, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith.
"Credit Facilities" means, one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case with banks or other institutional lenders providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, in each case, as amended, restated,
modified, renewed, refunded, replaced or refinanced in whole or in part from
time to time (and whether or not with the original lender or lenders or another
lender or lenders and whether provided under the original Credit Facility or any
other credit or other agreement or
indenture).
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
5
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.08 hereof, in
the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, The Depository Trust Company and any
and all successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder of the Capital Stock, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
prior to compliance by the Company with the Change of Control Offer and Asset
Sale Offer and unless such repurchase or redemption complies with Section 4.07
hereof.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the
United States or the District of Columbia.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of Capital
Stock (other than Disqualified Stock) made for cash on a primary basis by the
Company after the date Notes are first issued.
"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.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.08(f) hereof.
"Exchange Offer" has the meaning set forth for such term in
the Registration Rights Agreement.
6
"Exchange Offer Registration Statement" means the Registration
Statement relating to the Exchange Offer, including the related Prospectus.
"Existing Indebtedness" means any Indebtedness of the Company
and its Restricted Subsidiaries (other than any other Permitted Debt) in
existence on the date Notes are first issued, until such amounts are repaid.
"Fixed Charges" means, with respect to any specified Person
for any period, the sum, without duplication, of (i) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings), and
net of the effect of all payments made or received pursuant to Hedging
Obligations incurred with respect to Indebtedness; plus (ii) the consolidated
interest of such Person and its Restricted Subsidiaries that was capitalized
during such period; plus (iii) any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon; plus (iv)
the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock or preferred stock of such Person or
any of its Restricted Subsidiaries, other than dividends on Equity Interests
payable solely in Equity Interests of the Company (other than Disqualified
Stock) or to the Company or a Restricted Subsidiary of the Company, times (b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"Fixed Charge Coverage Ratio" means, with respect to any
specified Person for any four-quarter reference period, the ratio of the
Consolidated Cash Flow of such Person for such period to the Fixed Charges of
such Person for such period. In the event that the specified Person or any of
its Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems any Disqualified Stock or preferred stock subsequent to
the commencement of the applicable four-quarter reference period and on or prior
to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made occurs (the "Calculation Date"), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of Disqualified Stock or preferred
stock, and the use of the proceeds therefrom as if the same had occurred at the
beginning of such period. In addition, for purposes of calculating the Fixed
Charge Coverage Ratio: (i) acquisitions that have been made by the specified
Person or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, subsequent to
the commencement of the applicable four-quarter reference period and on or prior
to the Calculation Date will be given pro forma effect as if they had occurred
on the first day of such period including any pro forma expense and cost
reductions that have occurred or are reasonably expected to occur, in the
reasonable judgment of the chief financial officer of the Company
7
(regardless of whether those expense and cost reductions could then be reflected
in pro forma financial statements in accordance with Regulation S-X promulgated
under the Securities Act or any other regulation or policy of the Commission
related thereto); (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded; and (iii) the Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving rise
to such Fixed Charges will not be obligations of the specified Person or any of
its Restricted Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
other statements by another entity that have been approved by a significant
segment of the accounting profession, which are in effect on the date the Notes
are first issued.
"Global Note Legend" means the legend set forth in Section
2.08(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of
the Restricted Global Note and the Unrestricted Global Note, in the form of
Exhibit A hereto issued in accordance with Sections 2.03 and 2.08 hereof.
"Government Securities" means (i) direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged and (ii) money market funds at least 95% of the assets of
which constitute Government Securities of the kinds described in clause (i) of
this definition.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect of all or any part of any Indebtedness in any manner
including, without limitation, by way of a pledge of assets or through letters
of credit or reimbursement agreements in respect thereof.
"Guarantors" means each of (i) the Company's Domestic
Subsidiaries in existence on the date of the Indenture; (ii) Xxxxxx Drilling
Offshore International, Inc., but only for so long as it guarantees the
Company's 10?% Senior Notes due 2009; (iii) any other subsidiary that executes a
Subsidiary Guarantee in accordance with the provisions of this Indenture; and
(iv) their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; (ii) foreign exchange
contracts and currency protection agreements; (iii) any commodity futures
contract, commodity option or other similar agreement or arrangements and (iv)
other similar agreements or arrangements.
"Holder" means a Person in whose name a Note is registered.
8
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent (i) in respect of
borrowed money; (ii) evidenced by bonds, notes, debentures or similar
instruments; (iii) in respect of banker's acceptances or letters of credit (or
reimbursement agreements in respect thereof) or similar instruments; (iv)
representing Capital Lease Obligations; (v) representing the balance deferred
and unpaid of the purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable or (vi) representing the net
obligations of such Person under any Hedging Obligations (the amount of any such
obligations to be equal at any time to the termination value of the agreement or
arrangement giving rise to such obligation that would be payable by such Person
at such time), if and to the extent any of the preceding items (other than
letters of credit, Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others to the
extent secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the Guarantee by the specified Person of any indebtedness of
any other Person. The amount of any Indebtedness outstanding as of any date will
be (i) the accreted value of the Indebtedness, in the case of any Indebtedness
issued with original issue discount; and (ii) the principal amount of the
Indebtedness, together with any interest on the Indebtedness that is more than
30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" is defined in the preamble hereto.
"Interest Payment Date" shall have the meaning set forth in
paragraph 1 of each Note and, if applicable, any Additional Notes.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or
capital contributions (excluding (x) commission, travel and similar advances to
officers and employees made in the ordinary course of business and (y) advances
to customers in the ordinary course of business that are recorded as accounts
receivable on the balance sheet of the lender), purchases or other acquisitions
for consideration of Indebtedness, Equity Interests or other securities,
together with all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary
of the Company sells or otherwise disposes of any Equity Interests of any direct
or indirect Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary of the Company, the
Company will be deemed to have made an Investment on the date of any such sale
or disposition in an amount equal to the fair market value of the Equity
Interests of and other Investments in such Subsidiary not sold or disposed of in
an amount determined as provided in the final paragraph of Section 4.07 hereof.
The acquisition by the Company or any Subsidiary of the Company of a Person that
holds an Investment in a third Person will be deemed to be an Investment made by
the Company or such Subsidiary in such third Person in an amount equal to the
fair market value
9
of the Investment held by the acquired Person in such third Person on the date
of any such acquisition in an amount determined as provided in the final
paragraph of Section 4.07 hereof.
"Issue Date" means the date the Initial Notes are issued.
"Letter of Transmittal" means the letter of transmittal, or
its electronic equivalent in accordance with the Applicable Procedures, to be
prepared by the Company and sent to all Holders of the Initial Notes or any
Additional Notes for use by such Holders in connection with an Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in such asset and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), other than gains associated with reimbursements for lost or
damaged tools in the ordinary course of business, together with any related
provision for taxes on such gain (but not loss), realized in connection with:
(a) any Asset Sale; or (b) the disposition of any securities by such Person or
any of its Subsidiaries or the extinguishment of any Indebtedness of such Person
or any of its Subsidiaries; and (ii) any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain (but
not loss).
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case after taking into account
any available tax credits or deductions and any tax sharing arrangements, any
amounts required to be applied to the repayment of Senior Debt secured by a Lien
on the asset or assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or assets established
in accordance with GAAP.
"New Notes" is defined in the preamble hereto.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) is the lender; (ii) no default with respect to
10
which (including any rights that the holders of the Indebtedness may have to
take enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Notes) of the Company or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment of the Indebtedness to
be accelerated or payable prior to its stated maturity; and (iii) as to which
the lenders have been notified in writing that they will not have any recourse
to the stock or assets of the Company or any of its Restricted Subsidiaries.
"Notes" has the meaning assigned to it in the preamble hereto.
"Obligations" means any principal, premium and Liquidated
Damages, if any, interest (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges,
expenses, indemnifications, reimbursement obligations, damages, guarantees, and
other liabilities or amounts payable under the documentation governing any
Indebtedness or in respect thereof.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel that
meets the requirements of Section 12.05 hereof. The counsel may be an employee
of or internal or other counsel to the Company or any Subsidiary of the Company.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Permitted Business" means the lines of business conducted by
the Company and its Restricted Subsidiaries on the date hereof and any business
incidental or reasonably related thereto or which is a reasonable extension
thereof as determined in good faith by the Company's Board of Directors.
"Permitted Investments" means (i) any Investment in the
Company or in a Restricted Subsidiary of the Company; (ii) any Investment in
Cash Equivalents; (iii) any Investment by the Company or any Subsidiary of the
Company in a Person, if as a result of such Investment: (a) such Person becomes
a Restricted Subsidiary of the Company; or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company; (iv) any Investment made as a result of the receipt
of non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant described above under Section 4.10
11
hereof; (v) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of the Company; (vi) any
Investments received (a) in satisfaction of judgments or in compromise of
obligations of trade creditors or customers that were incurred in the ordinary
course of business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or customer
or (b) as a result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment in default; (vii) guarantees
(including Subsidiary Guarantees) of Indebtedness permitted under the covenant
described above under Section 4.09 hereof; (viii) Hedging Obligations permitted
to be incurred under the covenant described above under Section 4.09 hereof;
(ix) payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (x) loans or
advances to employees made in the ordinary course of business consistent with
past practices of the Company or such Restricted Subsidiary not to exceed $2.0
million at any one time outstanding; (xi) other Investments in any Person having
an aggregate fair market value (measured on the date each such Investment was
made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (8) that are at
the time outstanding, not to exceed $35.0 million.
"Permitted Liens" means: (i) Liens securing Indebtedness and
other obligations under any Credit Facility permitted to be incurred under this
Indenture; (ii) Liens securing the Notes and Subsidiary Guarantees; (iii) Liens
existing on the date Notes are first issued; (iv) Liens in favor of the Company
or the Guarantors; (v) Liens to secure Indebtedness of any Restricted
Subsidiaries that are not Guarantors; provided that the Indebtedness is
permitted by the terms of this Indenture to be incurred; (vi) Liens on property
of a Person existing at the time such Person is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company or
otherwise becomes a Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such merger or
consolidation or such Person becoming a Restricted Subsidiary of the Company and
do not extend to any assets other than those of such Person; (vii) Liens on
property existing at the time of acquisition of the property by the Company or
any Restricted Subsidiary of the Company; provided that such Liens were in
existence prior to the contemplation of such acquisition and do not extend to
any assets other than such acquired property; (viii) Liens to secure
Indebtedness (including Capital Lease Obligations) permitted by clause (iv) of
the second paragraph of Section 4.09 hereof covering only the assets acquired
with such Indebtedness; (ix) Liens securing Permitted Refinancing Indebtedness
Incurred to refinance Indebtedness that was previously so secured; provided that
any such Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or distributions in respect thereof) that
secured or, under the written arrangements under which the original Lien arose,
could secure the Indebtedness being refinanced; (x) Liens on assets of
Unrestricted Subsidiaries that secure Non-Recourse Debt of Unrestricted
Subsidiaries; (xi) Liens securing Hedging Obligations related to Indebtedness
permitted under this Indenture; (xii) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (xiii)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other Liens imposed by law incurred in the
ordinary course of business for sums not delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall
12
have been made in respect thereof; (xiv) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure the
payment or performance of tenders, statutory or regulatory obligations, surety
and appeal bonds, bids, government contracts and leases, performance and return
of money bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money); (xv) judgment Liens not giving rise to an Event of
Default so long as any appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have been finally terminated
or the period within which such proceeding may be initiated shall not have
expired; (xvi) Liens upon specific items of inventory or other goods of any
Person securing such Person's obligations in respect of bankers acceptances
issued or created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods; (xvii) Liens securing
reimbursement obligations with respect to commercial letters of credit that
encumber documents and other property or assets relating to such letters of
credit and products and proceeds thereof; (xviii) Liens encumbering deposits
made to secure obligations arising from statutory, regulatory, contractual or
warranty requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off; (xix) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted; provided that any reserve or other appropriate provision
as is required in conformity with GAAP has been made therefor; and (xx) Liens
incurred in the ordinary course of business of the Company or any Subsidiary of
the Company with respect to obligations that do not exceed $10.0 million at any
one time outstanding. Notwithstanding the foregoing, "Permitted Liens" will not
include any Lien described in clause (vi), (vii) or (viii) above to the extent
such Lien applies to any Additional Assets acquired directly or indirectly from
Net Proceeds pursuant to the covenant described above under Section 4.10 hereof.
For purposes of this definition, the term "Indebtedness" will be deemed to
include interest on such Indebtedness.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Subsidiaries (other than
intercompany Indebtedness); provided that: (i) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does not exceed
the principal amount (or accreted value, if applicable) of the Indebtedness
extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith); (ii) such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in
right of payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such
Permitted Refinancing Indebtedness is incurred either by (a) the Company or a
Guarantor or (b) by the Subsidiary that is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
13
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Private Placement Legend" means the legend set forth in
Section 2.08(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"Prospectus" means the prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, the Guarantors,
Xxxxxx Brothers Inc., Deutsche Bank Securities Inc. and Banc of America
Securities LLC, as such agreement may be amended, modified or supplemented from
time to time and, with respect to any Additional Notes, one or more registration
rights agreements among the Company, the Guarantors and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes, or exchange such Additional Notes for
registered Notes, under the Securities Act.
"Registration Statement" means any registration statement of
the Company relating to (a) an offering of New Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that is filed
pursuant to the provisions of the Registration Rights Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the applicable date specified as a "Record Date" on the face
of the Note.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes initially sold in reliance on Rule 903 of Regulation S.
"Responsible Officer" when used with respect to the Trustee,
means the officer in the Institutional Trust Services department of the Trustee
having direct responsibility for the administration of this Indenture.
14
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day period as defined in
Regulation S.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (i) all Indebtedness of the Company or any
Restricted Subsidiary outstanding under Credit Facilities and all Hedging
Obligations with respect thereto; (ii) any other Indebtedness of the Company or
any Restricted Subsidiary permitted to be incurred under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is subordinated in right of payment to the Notes or
any Subsidiary Guarantee; and (iii) all Obligations with respect to the items in
the preceding clauses (i) and (ii). Notwithstanding anything to the contrary in
the preceding sentence, Senior Debt will not include (i) any liability for
federal, state, local or other taxes owed or owing by the Company; (ii) any
intercompany Indebtedness of the Company to any of its Subsidiaries to the
Company or any of its Affiliates; (iii) any trade payables; or (iv) any
Indebtedness that is incurred in violation of this Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02(w) of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof; provided that all Unrestricted Subsidiaries
will be excluded from all calculations under Rule 1-02(w) of Regulation S-X.
"Specified Amount" means, as of any date, the Consolidated
Cash Flow of the Company for the most recently ended four-quarter period for
which financial statements have been filed with the SEC determined on a pro
forma basis after giving effect to all acquisitions or
15
Asset Sales made by the Company and its Restricted Subsidiaries from the
beginning of such four-quarter period through and including such date of
determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such four-quarter
period.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means with respect to any specified Person (i)
any corporation, association or other business entity of which more than 50% of
the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees of the corporation, association or other business entity is
at the time owned or controlled, directly or indirectly, by that Person or one
or more of the other Subsidiaries of that Person (or a combination thereof); and
(ii) any partnership (a) the sole general partner or the managing partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person (or
any combination thereof).
"Subsidiary Guarantee" means any Guarantee by a Guarantor of
the Company's payment Obligations under this Indenture and on the Notes,
executed pursuant to the provisions of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, as shown on the most recently available consolidated balance sheet of the
Company and its Restricted Subsidiaries.
"Transfer Restricted Securities" means each Note, until the
earliest to occur of (a) the date on which such Note has been exchanged by a
person other than a Broker-Dealer for an Exchange Note in the Exchange Offer,
(b) following the exchange by a Broker-Dealer in the Exchange Offer of such Note
for one or more Exchange Notes, the date on which such Exchange Notes are sold
to a purchaser who receives from such Broker-Dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Note has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf Registration
Statement or (d) the date on which such Note is eligible to be distributed to
the public pursuant to Rule 144 under the Securities Act.
"Trustee" means the party named as such in the preamble hereto
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
16
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent Global Note in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing Notes that do not bear the Private Placement
Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such Subsidiary: (i)
has no Indebtedness other than Non-Recourse Debt; (ii) is not party to any
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (iii) is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation (a) to subscribe for additional Equity Interests or (b)
to maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and (iv) has not
guaranteed or otherwise directly or indirectly provided credit support for any
Indebtedness of the Company or any of its Restricted Subsidiaries. Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an officers' certificate
certifying that such designation complied with the preceding conditions and was
permitted under Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will be
deemed to be incurred by a Restricted Subsidiary of the Company as of such date
and, if such Indebtedness is not permitted to be incurred as of such date under
the covenant described under Section 4.09 hereof, the Company will be in default
of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period and (2) no Default would be in existence following such
designation.
"U.S. Person" means a U.S. person as defined in Rule 902(a)
under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors (or comparable body) of such Person.
17
"Weighted Average Life to Maturity" means when applied to any
Indebtedness or Disqualified Stock or preferred stock of a Guarantor at any
date, the number of years obtained by dividing: (i) the sum of the products
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect of the Indebtedness or redemption or
similar payment in respect of the Disqualified Stock or preferred stock of a
Guarantor by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by (ii) the
then outstanding principal amount of such Indebtedness.
Section 1.02. Other Definitions.
Defined in
Term Section
"Additional Notes" 2.01
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Asset Sale Offer Period" 3.09
"Asset Sale Payment Date" 3.09
"Authentication Order" 2.04
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.05
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"New Guarantor" 11.05
"Offer Amount" 3.09
"Other Indebtedness" 11.05
"Paying Agent" 2.05
"Payment Default" 6.01
"Permitted Debt" 4.09
"Registrar" 2.05
"Restricted Payments" 4.07
Section 1.03. One Class of Securities. The Initial Notes and
the New Notes shall vote and consent together on all matters as one class and
none of the Initial Notes or the New Notes shall have the right to vote or
consent as a separate class on any matter.
Section 1.04. 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:
18
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.05. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE II
THE NOTES
Section 2.01. Issuance of Additional Notes. The Company may,
subject to Section 4.09 hereof, issue additional Notes ("Additional Notes")
under this Indenture which will have identical terms as the Initial Notes issued
on the Issue Date other than with respect to the date of issuance, issue price,
first payment of interest and rights under a related Registration Rights
Agreement, if any. The Initial Notes issued on the Issue Date, any Additional
Notes and all Exchange 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 the Board of Directors and an Officers' Certificate, a
copy of each of which shall be delivered to the Trustee, the following
information:
19
(a) the aggregate principal amount of such Additional
Notes to be authenticated and delivered pursuant to this Indenture;
(b) the issue price, the issue date and the CUSIP
number of such Additional Notes; and
(c) whether such Additional Notes shall be subject to
the restrictions on transfer set forth in Section 2.08 hereof relating to
Restricted Global Notes and Restricted Definitive Notes.
Section 2.02. Payments by Company by Wire Transfer. The
Company shall make all interest, premium, if any, and principal payments by wire
transfer to any Holder who shall have given written directions to the Company to
make such payments by wire transfer pursuant to the wire transfer instructions
supplied to the Company by such Holder.
Section 2.03. Form and Dating. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a part
of this Indenture and 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. However, to the extent any provision of any Note conflicts
with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling. Notes shall be dated the date of their
authentication.
(a) Global Notes.
Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.08 hereof.
(b) Euroclear and Clearstream Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream" and "Customer Handbook" of Clearstream
shall be applicable to transfers of beneficial interests in the Regulation S
Global Notes that are held by Participants through Euroclear or Clearstream.
20
Section 2.04. Execution and Authentication. An Officer shall
sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer (an "Authentication Order"), authenticate Notes for original issue
up to the aggregate principal amount stated in paragraph 4 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.09 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.05. Registrar and Paying Agent. The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Notes may
be presented for payment ("Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
Section 2.06. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as
21
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
Section 2.07. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of all Holders and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders and the Company shall otherwise comply with TIA Section
312(a).
Section 2.08. Transfer and Exchange. (a) Transfer and Exchange
of Global Notes. A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary, (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the Trustee
or (iii) there shall have occurred and be continuing a Default or Event of
Default with respect to the Notes. Upon the occurrence of any of the preceding
events in (i), (ii) or (iii) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.09 and
2.12 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.08 or
Section 2.09 or 2.12 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.08(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.08(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend and any
Applicable Procedures; provided, however, that prior to the expiration
of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a
22
U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser or a "distributor" (as defined in Rule 902(d) of
Regulation S)). Beneficial interests in any Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note. Except as may be
required by Applicable Procedures, no written orders or instructions
shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.08(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.08(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) if permitted under Section 2.08(a) hereof,
(1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (B)(1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests
in the Regulation S Global Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any
certificates pursuant to Rule 903 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance with
Section 2.08(f) hereof, the requirements of this Section 2.08(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and
the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.08(h) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global
Note to Another Restricted Global Note. A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements
of Section 2.08(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A
Global Note, then the transferor must
deliver a certificate in the form of Exhibit
B hereto, including the certifications in
item (1) thereof; and
(B) if the transferee will take delivery in the
form of a beneficial interest in the
Regulation S Global Note, then the
transferor must
23
deliver a certificate in the form of Exhibit
B hereto, including the certifications in
item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note only if the exchange or transfer complies with the requirements of
Section 2.08(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the
holder of the beneficial interest to be
transferred, in the case of an exchange, or
the transferee, in the case of a transfer,
makes any and all certifications in the
applicable Letter of Transmittal or is
deemed to have made such certifications if
delivery is made through the Applicable
Procedures as may be required by the
Registration Rights Agreement;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with a
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such beneficial
interest for a beneficial interest
in an Unrestricted Global Note, a
certificate from such holder in the
form of Exhibit C hereto, including
the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note
proposes to transfer such beneficial
interest to a Person who shall take
delivery thereof in the form of a
beneficial interest in an
Unrestricted Global Note, a
certificate from such holder in the
form of Exhibit B hereto, including
the certifications in item (4)
thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar so
requests, or the Applicable Procedures so
require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to
the effect that such exchange or transfer is
in compliance with the Securities Act and
that the restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
24
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.04 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Beneficial Interests in Restricted Global
Notes Prohibited. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, beneficial interests in a Restricted Global
Note.
(c) Transfer or Exchange of Beneficial Interests in Global
Notes for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. Subject to Section 2.08(a) hereof, if any
holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or
to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Note, then, upon receipt
by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being transferred to a
"non-U.S. Person" (as defined in Rule 902(k) of
Regulation S) in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate
to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration
requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate
to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof;
or
25
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.08(h) hereof, and the Company shall execute and upon receipt of an
Authentication Order in accordance with Section 2.04 hereof, the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Restricted Definitive Note issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 2.08(c)(i) shall
be registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Notes
are so registered. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.08(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.08(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Global Note may not be
exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (x) the
expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. Subject to Section 2.08(a) hereof, a
holder of a beneficial interest in a Restricted Global Note may
exchange such beneficial interest for an Unrestricted Definitive Note
or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with a Registration
Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the
transferee, in the case of a transfer, makes any and
all certifications in the applicable Letter of
Transmittal;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with a
Registration Rights Agreement;
(C) such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with a
Registration Rights Agreement; or
(D) the Registrar receives the following:
26
(1) if the holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such beneficial
interest for an Unrestricted
Definitive Note, a certificate from
such holder in the form of Exhibit C
hereto, including the certifications
in item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note
proposes to transfer such beneficial
interest to a Person who shall take
delivery thereof in the form of an
Unrestricted Definitive Note, a
certificate from such holder in the
form of Exhibit B hereto, including
the certifications in item (4)
thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar so
requests, or if the Applicable Procedures so
require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to
the effect that such exchange or transfer is
in compliance with the Securities Act and
that the restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of this
Section 2.08(c)(iii), the Company shall execute, and, upon receipt of
an Authentication Order in accordance with Section 2.04 hereof, the
Trustee shall authenticate and deliver to the Person designated in the
instructions an Unrestricted Definitive Note in the appropriate
principal amount, and the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Note to be reduced in a
corresponding amount pursuant to Section 2.08(h) hereof.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. Subject to Section 2.08(a) hereof, if
any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for an Unrestricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note,
then, upon satisfaction of the applicable conditions set forth in
Section 2.08(b)(ii) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Unrestricted Global Note to be
reduced accordingly pursuant to Section 2.08(h) hereof, and the Company
shall execute and, upon receipt of an Authentication Order in
accordance with Section 2.04 hereof, the Trustee shall authenticate and
deliver to the person designated in the instructions an Unrestricted
Definitive Note in the appropriate principal amount. Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.08(c)(iv) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Unrestricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.08(c)(iv) shall not bear the
Private Placement Legend.
27
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a
beneficial interest in a Restricted Global
Note, a certificate from such Holder in the
form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule
144A, a certificate to the effect set forth
in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a "non-U.S. Person" (as
defined in Rule 902(k) of Regulation S) in
an offshore transaction in accordance with
Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto,
including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from
the registration requirements of the
Securities Act in accordance with Rule 144,
a certificate to the effect set forth in
Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to the Company or any of its
Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being
transferred pursuant to an effective
registration statement under the Securities
Act, a certificate to the effect set forth
in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, and in the case of clause
(C) above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial
28
interest in an Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the
Holder, in the case of an exchange, or the
transferee, in the case of a transfer, makes
any and all certifications in the applicable
Letter of Transmittal;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) such transfer is effected by a participating
Broker-Dealer pursuant to an Exchange Offer
Registration Statement in accordance with a
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Note proposes to exchange
such Note for a beneficial interest
in an Unrestricted Global Note, a
certificate from such Holder in the
form of Exhibit C hereto, including
the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Restricted
Definitive Note proposes to transfer
such Note to a Person who shall take
delivery thereof in the form of a
beneficial interest in an
Unrestricted Global Note, a
certificate from such Holder in the
form of Exhibit B hereto, including
the certifications in item (4)
thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar requests
or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect
that such exchange or transfer is in
compliance with the Securities Act and that
the restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.08(d)(ii), the Trustee shall cancel
such Restricted Definitive Note and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
29
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
(iv) Transfer or Exchange of Unrestricted Definitive Notes to
Beneficial Interests in Restricted Global Notes Prohibited. An Unrestricted
Definitive Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global
Note.
(v) Issuance of Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial interest in an
Unrestricted Global Note is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.04 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.08(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by such Holder's attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.08(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to
Rule 144A, then the transferor must deliver
a certificate in the form of Exhibit B
hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor
must deliver a certificate in the form of
Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration
requirements of the Securities Act, then the
transferor must deliver a certificate in the
form of Exhibit B hereto, including the
certifications, certificates and Opinion of
Counsel required by item (3) thereof, if
applicable.
30
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the
Holder, in the case of an exchange, or the
transferee, in the case of a transfer, makes
any and all certifications in the applicable
Letter of Transmittal;
(B) any such transfer is effected pursuant to a
Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) any such transfer is effected by a
participating Broker-Dealer pursuant to an
Exchange Offer Registration Statement in
accordance with a Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to
exchange such Notes for an
Unrestricted Definitive Note, a
certificate from such Holder in the
form of Exhibit C hereto, including
the certifications in item (1)(d)
thereof; or
(2) if the Holder of such Restricted
Definitive Notes proposes to
transfer such Notes to a Person who
shall take delivery thereof in the
form of an Unrestricted Definitive
Note, a certificate from such Holder
in the form of Exhibit B hereto,
including the certifications in item
(4) thereof;
and, in each such case set forth in this
subparagraph (D), an Opinion of Counsel in
form reasonably acceptable to the Company to
the effect that such exchange or transfer is
in compliance with the Securities Act and
that the restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of Section
2.08(e)(ii), the Trustee shall cancel the prior Restricted Definitive
Note and the Company shall execute, and, upon receipt of an
Authentication Order in accordance with Section 2.04 hereof, the
Trustee shall authenticate and deliver to the Person designated in the
instructions an Unrestricted Definitive Note in the appropriate
principal amount.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to
31
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer
in accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.04, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the applicable Restricted Global Notes tendered for acceptance by
Persons that make any and all certifications in the applicable Letter of
Transmittal or are deemed to have made such certifications if delivery is made
through the Applicable Procedures as may be required by such Registration Rights
Agreement, and accepted for exchange in the Exchange Offer and (ii) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who made
the foregoing certifications and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of
Unrestricted Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE RE-OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT
32
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH XXXXXX
DRILLING COMPANY (THE "COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE
TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THE NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
of this Section 2.08 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
33
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR
BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR
NOMINEE OF A SUCCESSOR DEPOSITARY, OR ANY NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. TRANSFERS OF THE 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 THE GLOBAL NOTE SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK
CORPORATION ("DTC"), TO THE 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.
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular
Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, each such
Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.13 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order.
34
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.12, 3.06, 3.09, 4.10, 4.15
and 9.05).
(iii) The Registrar shall not be required to register the
transfer of or to exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(v) The Registrar shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection or (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part.
(vi) The Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.04
hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.08 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) The Trustee is hereby authorized and directed to enter
into a letter of representation with the Depositary in the form provided by the
Company and to act in accordance with such letter.
Section 2.09. Replacement Notes. If any mutilated Note is
surrendered to the Trustee or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the
35
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note issued in accordance with this Section
2.09 is an additional obligation of the Company and shall be entitled to all of
the benefits of this Indenture equally and proportionately with all other Notes
duly issued hereunder.
Section 2.10. Outstanding Notes. The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those canceled by
it, those delivered to it for cancellation, those reductions in the interest in
a Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 2.11 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by the
Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.09 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.11. Treasury Notes. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company, or by any Affiliate of
the Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
Section 2.12. Temporary Notes. Until certificates representing
Notes are ready for delivery, the Company may prepare and the Trustee, upon
receipt of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of certificated Notes but may
have variations that the Company considers appropriate for temporary Notes and
as shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.13. 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
36
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
such canceled Notes (subject to the record retention requirement of the Exchange
Act in its customary manner). The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.14. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in
each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The
Company shall fix or cause to be fixed each such special record date and payment
date; provided that no such special record date shall be less than 10 days prior
to the related payment date for such defaulted interest. At least 15 days before
the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) shall mail
or cause to be mailed to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
Section 2.15. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee. If the Company elects to
redeem Notes pursuant to the optional redemption provisions of Section 3.07
hereof, it shall furnish to the Trustee, at least 60 days before a redemption
date (or such shorter period as allowed by the Trustee), an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed. If less than
all of the Notes are to be redeemed or purchased in an offer to purchase at any
time, the Trustee shall select the Notes to be redeemed or purchased among the
Holders of the Notes in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, by lot or in accordance with any
other method the Trustee considers fair and appropriate; provided that no Notes
of $1,000 or less shall be redeemed in part. In the event of partial redemption
by lot, the particular Notes to be
37
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction
pursuant to Article 10 hereof.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption, except that redemption notices
may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes or a satisfaction and
pursuant to Article 10 hereof. Notices of redemption may not be conditional.
Section 3.03. Notice of Redemption. Subject to the provisions
of Section 3.09 hereof, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address.
The notice shall identify the Notes (including CUSIP numbers)
to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
38
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 60 days prior to the
redemption date (or such shorter period as allowed by the Trustee), an Officers'
Certificate requesting that the Trustee give such notice (in the name and at the
expense of the Company) and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption shall become irrevocably due and payable on the redemption date at
the redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price. One Business Day
prior to any redemption date, the Company shall deposit with the Trustee or with
the Paying Agent money sufficient to pay the redemption price of and, if
applicable, accrued interest and Liquidated Damages, if any, on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after a Regular Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such Regular
Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part. Upon surrender of a Note
that is redeemed in part, the Company shall issue and, upon the Company's
written request, 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.
Section 3.07. Optional Redemption. (a) Except as set forth in
clause (b) of this Section 3.07, the Company shall not have the option to redeem
the Notes pursuant to this Section 3.07 prior to October 1, 2008. On or after
October 1, 2008, the Company may redeem all or part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on October 1 of the
years indicated below:
39
Year Percentage
2008 ................................................................................ 104.813%
2009 ................................................................................ 103.208%
2010 ................................................................................ 101.604%
2011 and thereafter ................................................................. 100.000%
(b) Notwithstanding the foregoing, at any time prior to
October 1, 2006, the Company may on any one or more occasions redeem up to 35%
of the aggregate principal amount of Notes (which includes Additional Notes, if
any) originally issued under this Indenture at a redemption price of 109.625% of
the principal amount thereof, plus accrued and unpaid interest to the redemption
date, with the net cash proceeds of one or more Equity Offerings; provided that
(i) at least 65% of the aggregate principal amount of Notes (which includes
Additional Notes, if any) originally issued remains outstanding immediately
after the occurrence of each such redemption (excluding the Notes held by the
Company and its Subsidiaries); and (ii) any such redemption shall occur within
120 days of the date of the closing of each such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
(d) If the optional redemption date is on or after an interest
record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, will be paid to the Person in whose name the Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders whose Notes will be subject to redemption by
the Company.
Section 3.08. Mandatory Redemption. Except as set forth in
Sections 4.10 and 4.15, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess
Proceeds. In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an offer to all Holders to purchase Notes (an "Asset
Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of at
least 20 Business Days following its commencement and not more than 30 Business
Days, except to the extent that a longer period is required by applicable law
(the "Asset Sale Offer Period"). No later than three Business Days after the
termination of the Asset Sale Offer Period (the "Asset Sale Payment Date"), the
Company shall apply all Excess Proceeds to purchase the principal amount of
Notes and other pari passu Indebtedness required to be purchased pursuant to
Section 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes and other pari passu Indebtedness tendered in response
to the Asset Sale Offer. Payment for any Notes and other pari passu Indebtedness
so purchased shall be made in the same manner as interest payments are made.
40
If the Asset Sale Payment Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest and Liquidated Damages, if any, shall be paid to the Person in
whose name a Note is registered at the close of business on such record date,
and no additional interest shall be payable to Holders who tender Notes pursuant
to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Asset Sale
Payment Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Payment Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company,
a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Asset
Sale Payment Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Asset Sale Offer Period,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and
a statement that such Holder is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount or less than all of the
Notes tendered pursuant to the Asset Sale Offer are accepted for
payment by the Company for any reason consistent with this Indenture,
the Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
41
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Asset Sale Payment Date, the Company shall,
to the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes and other pari passu Indebtedness
termination of the Asset Sale Offer Period or portions thereof tendered pursuant
to the Asset Sale Offer, or if less than the Offer Amount has been tendered or
less than all of the Notes tendered pursuant to the Asset Sale Offer are
accepted for payment by the Company for any reason consistent with this
Indenture, all Notes and other pari passu Indebtedness tendered or accepted, and
shall deliver to the Trustee an Officers' Certificate stating that such Notes
and other pari passu Indebtedness or portions thereof were accepted for payment
by the Company in accordance with the terms of this Section 3.09. The Company,
the Depositary or the Paying Agent, as the case may be, shall promptly (but in
any case not later than three Business Days after the termination of the Asset
Sale Offer Period) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes properly tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company shall promptly authenticate
and mail (or cause to be transferred by book entity) such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered, if any. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Asset Sale Payment Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Notes. The Company shall pay or cause
to be paid the principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest and Liquidated Damages, if any,
shall be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest and Liquidated Damages, if any, then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; if applicable, it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any, (without regard to any
applicable grace period) at the same rate to the extent lawful.
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
42
of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or for 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 shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office 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 for such purposes. 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 Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.05.
Section 4.03. Reports. (a) Whether or not required by the
rules and regulations of the SEC, so long as any Notes are outstanding, the
Company shall furnish to the Holders and the Trustee (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Company were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries and, with respect to
the annual information only, a report on the annual financial statements by the
Company's certified independent accountants and (ii) all current reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports, in each case, within the time periods specified
in the SEC's rules and regulations. In addition, following the consummation of
an Exchange Offer, whether or not required by the rules and regulations of the
SEC, the Company shall file a copy of all of the information and reports
referred to in clauses (i) and (ii) with the SEC for public availability within
the time periods specified in the SEC's rules and regulations (unless the SEC
will not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all times
comply with TIA Section 314(a). The Company intends to file its annual and
quarterly financial information with the SEC in electronic form pursuant to
Regulation S-T of the SEC using the SEC's Electronic Data Gathering, Analysis
and Retrieval ("XXXXX") system. The Company shall notify the Trustee in the
manner prescribed herein of each such annual and quarterly filing. The Trustee
is hereby authorized and directed to access the XXXXX system for purposes of
retrieving the financial information so filed. Compliance with the foregoing
shall constitute delivery by the Company of its financial information to the
Trustee in compliance with the provisions of TIA Section 314(a). The Trustee
shall have no duty to search for or obtain any electronic or other filings that
the Company makes with the SEC, regardless of whether such filings are periodic,
supplemental or otherwise. 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
43
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 conclusively rely exclusively
on Officers' Certificates).
(b) For so long as any Notes remain outstanding, the Company
and the Guarantors shall also 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 Securities Act.
Section 4.04. Compliance Certificate. (a) The Company shall
deliver to the Trustee, within 90 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred and is continuing, describing all such Defaults or
Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best
of his or her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03 shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
connection with the audit for certification of such financial statements
contained in such reports, nothing has come to their attention that would lead
them to believe that the Company has failed to comply with any provisions of
Article 4 or Article 5 hereof insofar as the provisions relate to accounting
matters or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05. Taxes. The Company shall pay, and shall cause
each of its Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
44
Section 4.06. 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.
Section 4.07. Restricted Payments. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or distribution on
account of any Equity Interests of the Company or any of its Restricted
Subsidiaries (including, without limitation, any payment in connection with any
merger or consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of any Equity Interests of
the Company or any of its Restricted Subsidiaries in their capacity as such
(other than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary
of the Company); (ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or
indirect parent of the Company; (iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees,
except a payment of interest or principal at Stated Maturity; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted by
clauses (ii), (iii), (iv) and (vi) of the next succeeding paragraph) is less
than, at the date of determination, the sum, without duplication, of (A) 50% of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the fiscal quarter in which the Notes
are first issued to the end of the Company's most recently ended fiscal quarter
for which internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a
deficit, less 100% of such deficit), plus (B) 100% of the aggregate net cash
proceeds (or the fair market value of any Permitted Business or assets used or
useful in a Permitted Business to the extent acquired in consideration of Equity
Interests (other than Disqualified Stock) of the Company) received by the
Company since the Issue Date as a contribution to its common equity capital or
from the issue or sale of Equity Interests of the Company (other than
45
Disqualified Stock) or from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt securities of the Company
that have been converted into or exchanged for such Equity Interests (other than
Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary
of the Company), plus (C) to the extent that any Restricted Investment that was
made after the Issue Date is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (i) the cash return of capital with respect to such
Restricted Investment, including without limitation repayment of principal of
any Restricted Investment constituting a loan or advance (less the cost of
disposition, if any) and (ii) the initial amount of such Restricted Investment,
plus (D) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary after the Issue Date, the lesser of (i)
the fair market value of the Company's Investment in such Subsidiary as of the
date of such redesignation or (ii) the aggregate fair market value of the
Company's Investment in such Subsidiary as of the date on which such Subsidiary
was originally designated as an Unrestricted Subsidiary and all Investments made
by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary that
were treated as Restricted Payments since such designation, in each case as of
the date of such Investment.
The preceding provisions shall not prohibit: (i) the payment
of any dividend or distribution within 60 days after the date of declaration
thereof, if at the date of declaration the dividend payment or distribution
within 60 days would have complied with the provisions of this Indenture; (ii)
the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any Equity
Interests of the Company or any of its Restricted Subsidiaries in exchange for,
or out of the net cash proceeds of the substantially concurrent sale (other than
to a Subsidiary of the Company) of, Equity Interests of the Company (other than
Disqualified Stock); provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (c)(B) of the preceding
paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness or Disqualified Stock of the Company or any Guarantor
with the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness; (iv) the payment of any dividend or distribution by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro rata
basis; (v) so long as no Default has occurred and is continuing or would be
caused thereby, the repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any Restricted Subsidiary of
the Company held by any existing or former employee of the Company (or any of
its Restricted Subsidiaries) pursuant to any equity subscription agreement,
stock option agreement or similar agreement; provided that the aggregate price
paid for all such repurchased, redeemed, acquired or retired Equity Interests
may not exceed $2.0 million in any twelve-month period; (vi) so long as no
Default has occurred and is continuing or would be caused thereby, the
declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Company issued in accordance with the terms of this
Indenture to the extent such dividends are included in the definition of "Fixed
Charges"; (vii) the acquisition of Equity Interests by the Company in connection
with the exercise of stock options or stock appreciation rights by way of
cashless exercise or in connection with the satisfaction of withholding tax
obligations; (viii) any purchase, redemption or other acquisition or retirement
of the Company's 5.5% Convertible Subordinated Notes due 2004 prior to their
Stated Maturity;
46
and (ix) so long as no Default has occurred and is continuing or would be caused
thereby, other Restricted Payments in an aggregate amount since the Issue Date
not to exceed $20.0 million.
The amount of all Restricted Payments (other than cash) will
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this covenant will be determined in good faith by the Board of Directors,
whose resolution with respect thereto will be delivered to the Trustee. The
Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the fair market value exceeds $10.0 million. Not later than the date
of making any Restricted Payment, the Company will deliver to the Trustee an
officers' certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this "Restricted
Payments" covenant were computed, together with a copy of any fairness opinion
or appraisal required by this Indenture.
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if that designation would not cause a Default.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary properly designated will be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under the first or second
paragraph of this Section 4.07, as determined by the Company. That designation
will only be permitted if the Investment would be permitted at that time and if
the Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary
to be a Restricted Subsidiary if the redesignation would not cause a Default.
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions on
its Capital Stock to the Company or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by, its profits,
or (b) pay any Indebtedness owed to the Company or any of its Restricted
Subsidiaries, (ii) make loans or advances to the Company or any of its
Restricted Subsidiaries or (iii) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries. However, the preceding
restrictions will not apply to encumbrances or restrictions existing under or by
reason of (1) agreements governing Existing Indebtedness and Credit Facilities
as in effect on the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
those agreements, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings are
no more restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in those agreements on the Issue Date,
(2) This Indenture, the Notes and the Subsidiary Guarantees; (3) applicable law
or any applicable rule, regulation or order of any court or governmental
authority; (4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted
47
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired; provided that,
in the case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred; (5) customary non-assignment provisions in any
contract or lease entered into in the ordinary course of business and consistent
with past practices; (6) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions on that property of the
nature described in clause (iii) of this Section 4.08; (7) any agreement for the
sale or other disposition of a Restricted Subsidiary that restricts
distributions by that Restricted Subsidiary pending its sale or other
disposition; (8) Permitted Refinancing Indebtedness; provided that the
encumbrances or restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced; (9) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 4.12 hereof that limit the right of the debtor
to dispose of the assets subject to such Liens; (10) provisions with respect to
the disposition or distribution of assets or property in joint venture
agreements, asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business; (11) restrictions on
cash or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business; and (12) secured Indebtedness otherwise
permitted to be incurred pursuant to the provisions of Section 4.12 hereof that
limit the right of the debtor to dispose of the assets securing the
Indebtedness.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock. The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and the Company shall not issue any
Disqualified Stock and shall not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company and any
Restricted Subsidiary may incur Indebtedness (including Acquired Debt) and the
Company may issue Disqualified Stock, if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least 2.0 to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or Disqualified Stock had been issued, as the
case may be, at the beginning of such four quarter period.
The first paragraph of this covenant will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company and any Restricted
Subsidiary of Indebtedness and letters of credit under one or more
Credit Facilities in an aggregate principal amount at any one time
outstanding under this clause (i) (with letters of credit being deemed
to have a principal amount equal to the maximum potential liability of
the Company and its Subsidiaries thereunder) not to exceed $175.0
million;
48
(ii) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes issued on the Issue Date and the
Exchange Notes, including, in each case, the related Subsidiary
Guarantees to be issued pursuant to the registration rights agreement
and Subsidiary Guarantees of any additional Notes that may be issued in
the future in accordance with this covenant;
(iv) the incurrence by the Company and any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or
equipment used in the business of the Company or such Restricted
Subsidiary, in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (iv), not to exceed $5.0
million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under the first paragraph of this
covenant or clauses (ii), (iii), (v) or (xiv) of this paragraph;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided that: (a) if the
Company or any Guarantor is the obligor on such Indebtedness, such
Indebtedness must be expressly subordinated to the prior payment in
full in cash of all Obligations with respect to the Notes, in the case
of the Company, or the Subsidiary Guarantee, in the case of a
Guarantor; and (b) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary of the Company and
(ii) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary of the
Company will be deemed, in each case, to constitute an incurrence of
such Indebtedness by the Company or a Restricted Subsidiary, as the
case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the normal course of business
and not for speculative purposes, designed to protect the Company or
its Restricted Subsidiary against fluctuations in interest rates or
currency exchange rates with respect to Indebtedness incurred or
against fluctuations in the price of commodities used by that entity at
the time;
(viii) the Guarantee by the Company or any of the Guarantors
of Indebtedness of the Company or any Restricted Subsidiary that was
permitted to be incurred by another provision of this covenant;
provided that in the event the Indebtedness that is being Guaranteed is
subordinated in right of payment to the Notes or a Subsidiary
Guarantee, then the Guarantee of that Indebtedness by the Company or
the Guarantor shall be
49
subordinated in right of payment to the Notes or the Guarantor's
Subsidiary Guarantee, as the case may be;
(ix) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional
shares of the same class of Disqualified Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this covenant; provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued;
(x) the incurrence by the Company's Unrestricted Subsidiaries
of Non-Recourse Debt; provided that if any such Indebtedness ceases to
be Non-Recourse Debt of an Unrestricted Subsidiary, such event will be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (x);
(xi) Indebtedness incurred in respect of workers' compensation
claims, self-insurance obligations, bid, performance, surety and
similar bonds and completion guarantees provided by the Company or a
Restricted Subsidiary in the ordinary course of business;
(xii) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided that such
Indebtedness is extinguished within five business days of incurrence;
(xiii) Indebtedness represented by agreements of the Company
or a Restricted Subsidiary providing for indemnification, adjustment of
purchase price or similar obligations, in each case, incurred or
assumed in connection with the disposition of any business, assets or
Capital Stock of the Company or any Restricted Subsidiary; provided
that the maximum aggregate liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds actually
received by the Company and its Restricted Subsidiaries in connection
with such disposition;
(xiv) Indebtedness of a Restricted Subsidiary incurred and
outstanding on the date on which such Restricted Subsidiary was
acquired by the Company (other than Indebtedness incurred in connection
with, or in contemplation of, such acquisition); provided that at the
time such Restricted Subsidiary is acquired by the Company, the Company
would have been able to incur $1.00 of additional Indebtedness pursuant
to the first paragraph of this covenant after giving effect to the
incurrence of such Indebtedness pursuant to this clause (xiv); and
(xv) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause
(xv), not to exceed $30.0 million.
50
For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness (including Acquired Debt) at any time
meets the criteria of more than one of the categories of Permitted Debt
described in clauses (i) through (xv) above or is entitled to be incurred
pursuant to the first paragraph of this Section 4.09, the Company will be
permitted to classify (and later reclassify) in whole or in part, in its sole
discretion such item of Indebtedness in any manner that complies with this
Section 4.09.
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency will be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is incurred to refinance other Indebtedness
denominated in the same foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
the U.S. dollar-denominated restriction will be deemed not to have been exceeded
so long as the principal amount of the refinancing Indebtedness does not exceed
the principal amount of the Indebtedness being refinanced. Notwithstanding any
other provision of this Section 4.09, the maximum amount of Indebtedness that
the Company may incur pursuant to this covenant will not be deemed to be
exceeded solely as a result of fluctuations in the exchange rate of currencies.
Section 4.10. Asset Sales. The Company shall not, and shall
not permit any of its Restricted Subsidiaries to consummate an Asset Sale unless
(i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by (a) an executive officer of the
Company if the value is less than $10.0 million and evidenced by an officer's
certificate delivered to the Trustee or (b) the Company's Board of Directors if
the value is $10.0 million or more and evidenced by a resolution of such Board
of Directors delivered to the Trustee; and (iii) at least 75% of the
consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents or any combination
thereof. For purposes of this Section 4.10 each of the following shall be deemed
to be cash: (a) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from further liability
and (b) any securities, notes or other obligations received by the Company or
such Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash or Cash Equivalents within 180
days following the closing of such Asset Sale, to the extent of the cash or Cash
Equivalents received in that conversion.
Within 365 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds at its option (i) to repay,
repurchase, redeem, defease or otherwise acquire or retire Senior Debt of the
Company or any Indebtedness of a Restricted Subsidiary or the 5.5% Convertible
Subordinated Notes due 2004 of the Company; (ii) to acquire
51
all or substantially all of the assets of, or a majority of the Voting Stock of,
another Permitted Business; (iii) to make a capital expenditure in a Permitted
Business; or (iv) to acquire other long-term assets that are used or useful in a
Permitted Business. Pending the final application of any such Net Proceeds, the
Company may temporarily reduce revolving credit borrowings or otherwise invest
such Net Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Company will be required to make an offer (an "Asset Sale Offer") to all
Holders and to the extent required, to all holders of other Indebtedness of the
Company that is pari passu with the Notes containing provisions similar to those
set forth in this Indenture with respect to offers to purchase or redeem with
the proceeds of sales of assets, to purchase the maximum principal amount of
Notes (in integral multiples of $1,000) and such other pari passu Indebtedness
of the Company that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer will be equal to 100% of the principal amount of Notes
and other pari passu Indebtedness to be purchased or the lesser amount required
under agreements governing such other pari passu Indebtedness, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase, and
will be payable in cash. If any Excess Proceeds remain after consummation of an
Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes and other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee will select the Notes and
such other pari passu Indebtedness to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset
at zero.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this covenant, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
covenant by virtue of such conflict.
Section 4.11. Transactions with Affiliates. The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the Company
or such Restricted Subsidiary with an unrelated Person and (ii) the Company
delivers to the Trustee (a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, a resolution of the Board of Directors of the Company set forth
in an Officers' Certificate certifying that such Affiliate Transaction complies
with this Section 4.11 and that such Affiliate Transaction has been approved by
a majority of the disinterested members of the Board of Directors of the Company
and (b) with respect to any Affiliate Transaction or series of related Affiliate
52
Transactions involving aggregate consideration in excess of $20.0 million, an
opinion issued by an accounting, appraisal or investment banking firm of
national standing as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view or that the terms of the Affiliate
Transaction are no less favorable to the Company or the relevant Restricted
Subsidiary than terms that would have been obtained in a comparable transaction
with an unrelated person or entity. Notwithstanding the foregoing, the following
items shall not be deemed to be Affiliate Transactions: (i) any employment
agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business and consistent with past practice, (ii)
transactions between or among the Company and/or its Restricted Subsidiaries,
(iii) transactions with a Person that is an Affiliate of the Company solely
because the Company owns an Equity Interest in, or controls, such Person; (iv)
payment of reasonable directors fees to Persons who are not otherwise Affiliates
of the Company (v) sales of Equity Interests (other than Disqualified Stock) to
Affiliates of the Company, (vi) Restricted Payments that are permitted by
Section 4.07 hereof, (vii) any issuance of securities, or other payments, awards
or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements or stock option or stock ownership plans approved by the
Board of Directors, (viii) loans or advances to employees in the ordinary course
of business and consistent with past practices, but in any event not to exceed
$2.0 million in the aggregate outstanding at any one time, (ix) indemnification
agreements with, and payments made, to officers, directors and employees of the
Company or any of its Restricted Subsidiaries pursuant to charter, bylaw,
statutory or contractual provisions, and (x) the performance of obligations of
the Company or any of its Restricted Subsidiaries under the terms of any
agreement to which the Company or any of its Restricted Subsidiaries is a party
as of or on the Issue Date, and any amendments, modifications, supplements,
extensions or renewals of those agreements; provided that the amendments,
modifications, supplements, extensions or renewals are no more disadvantageous,
taken as a whole, to the Holders of the Notes than the terms of the agreements
in effect on the Issue Date.
Section 4.12. Liens. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) securing Indebtedness, Attributable Debt or trade payables upon
any of their property or assets, now owned or hereafter acquired, or any income
or profits therefrom or assign or convey any right to receive income therefrom,
unless all payments due under this Indenture and the Notes are secured on an
equal and ratable basis (or on a senior basis to, in the case of obligations
subordinated in right of payment to the Notes or Subsidiary Guarantee, as the
case may be) with the obligations so secured until such time as such obligations
are no longer secured by a Lien.
Section 4.13. Line of Business. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, engage in any business
other than Permitted Businesses, except to such extent that the activity would
not be material to the Company and its Subsidiaries taken as a whole.
Section 4.14. Corporate Existence. Subject to Article 5
hereof, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Subsidiary and (ii) the
rights (charter
53
and statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors of the Company or such
Subsidiary, as applicable, shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control. (a)
Upon the occurrence of a Change of Control, the Company shall make an offer (a
"Change of Control Offer") to each Holder of Notes to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes at an
offer price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder stating: (1)
that the Change of Control Offer is being made pursuant to this Section 4.15 and
that all Notes tendered will be accepted for payment; (2) the purchase price and
the purchase date, which shall be no earlier than 30 days and no later than 60
days from the date such notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest; (4) that,
unless the Company defaults in the payment of the Change of Control Payment, all
Notes accepted for payment pursuant to the Change of Control Offer shall cease
to accrue interest after the Change of Control Payment Date; (5) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will
be required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (6) that Holders will
be entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day preceding the Change of
Control Payment Date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and (7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof. The Company will comply with
the requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes as a result of a Change of
Control.
(b) On the Change of Control Payment Date, the Company will,
to the extent lawful, (1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Notes or portions thereof so tendered and (3) deliver or cause to be delivered
to the Trustee the Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions thereof being
purchased by the Company. The Paying Agent will promptly mail to each Holder of
Notes so tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. The Company will
publicly
54
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender in the Change of Control Offer.
The Company shall fix the Change of Control Payment Date no
earlier than 30 days and no later than 60 days after the Change of Control Offer
is mailed as set forth above. Prior to complying with the provisions of the
preceding sentence, but in any event within 90 days following a Change of
Control, the Company shall either repay all of its and its Subsidiaries'
outstanding Indebtedness or obtain the requisite consents, if any, under all
agreements governing all such outstanding Indebtedness to the extent necessary
to permit the repurchase of Notes required by this Section 4.15.
Notwithstanding the foregoing, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.15 and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.15, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.15, by virtue
thereof.
Section 4.16. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted Subsidiaries
to, enter into any sale and leaseback transaction; provided that the Company or
any Restricted Subsidiary may enter into a sale and leaseback transaction if (i)
the Company or that Restricted Subsidiary, as applicable, could have (a)
incurred Indebtedness in an amount equal to the Attributable Debt relating to
such sale and leaseback transaction pursuant to Section 4.09 hereof and (b)
incurred a Lien to secure such Indebtedness pursuant to Section 4.12 hereof,
(ii) the gross cash proceeds of such sale and leaseback transaction are at least
equal to the fair market value (as determined in good faith by the Board of
Directors and set forth in an Officers' Certificate delivered to the Trustee) of
the property that is the subject of such sale and leaseback transaction and
(iii) the transfer of assets in such sale and leaseback transaction is permitted
by, and the Company or such Restricted Subsidiary applies the proceeds of such
transaction in compliance with, Section 4.10 hereof.
Section 4.17. Payments for Consent. The Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, pay or
cause to be paid any consideration, to or for the benefit of any Holder of any
Notes for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such consideration is
offered to be paid and is paid to all Holders of the Notes that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
55
ARTICLE V
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets. The
Company shall not, directly or indirectly consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company and its Restricted Subsidiaries taken
as a whole, in one or more related transactions, to another Person unless (i)
either (a) the Company is the surviving corporation; or (b) the Person formed by
or surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition has been
made is a corporation organized or existing under the laws of the United States,
any state of the United States or the District of Columbia; (ii) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or the Person to which such sale, assignment, transfer, conveyance or
other disposition has been made assumes all the obligations of the Company under
the Notes, this Indenture and the Registration Rights Agreement pursuant to
agreements reasonably satisfactory to the Trustee; (iii) immediately after such
transaction no Default exists; and (iv) immediately after such transaction after
giving pro forma effect thereto and any related financing transactions as if the
same had occurred at the beginning of the applicable four-quarter period, either
the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
conveyance or other disposition has been made would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof or the Fixed
Charge Coverage Ratio of the Company or the surviving Person, as applicable, or
of the Person to which such sale, assignment, transfer, conveyance or other
disposition has been made, would not be less than the Fixed Charge Coverage
Ratio of the Company immediately prior to the transaction.
In addition, the Company may not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or more
related transactions, to any other Person.
Notwithstanding the preceding clause (iv), (a) any Restricted
Subsidiary of the Company may consolidate with, merge into or sell, assign,
transfer or convey all or part of its properties and assets to the Company and
(b) the Company may merge with an Affiliate that has no significant assets or
liabilities and was formed solely for the purpose of changing the jurisdiction
of organization of the Company to another state of the United States so long as
the amount of our Indebtedness and the Indebtedness of our Restricted
Subsidiaries is not increased thereby.
Section 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the Person formed by such consolidation or
into or with which the Company is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to such Person and not
to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such Person had been
56
named as the Company herein; provided, however, that the Company shall not be
relieved from the obligation to pay the principal of and interest on the Notes
except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.01 hereof.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. Each of the following is an
"Event of Default":
(a) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes;
(b) default in payment when due of the principal of, or
premium, if any, on the Notes;
(c) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Section 4.15 or Section 5.01
hereof;
(d) failure by the Company or any of its Restricted
Subsidiaries for 30 days after notice to comply with the provisions of Sections
4.07, 4.09 or 4.10 hereof;
(e) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to comply with any of the other agreements
in this Indenture;
(f) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or
is created after the Issue Date, if that default (i) is caused by a failure to
pay principal of, or interest or premium, if any, on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of
such default (a "Payment Default"); or (ii) results in the acceleration of such
Indebtedness prior to its Stated Maturity, and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $15.0 million or more;
(g) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $15.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days;
(h) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason (other than in accordance with the terms
of that Guarantee and this Indenture) to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Subsidiary Guarantee; and
(i) the Company, pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case,
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(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of any receiver,
trustee, assignee, liquidator, sequestrator,
custodian or similar official of the Company
under any Bankruptcy Law or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they
become due; or
(j) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief in an involuntary
case against the Company or any
Restricted Subsidiary that
constitutes a Significant
Subsidiary or any group of
Restricted Subsidiaries that, taken
as a whole, would constitute a
Significant Subsidiary;
(ii) appoints any receiver, trustee,
assignee, liquidator, sequestrator,
custodian or similar official of
the Company under any Bankruptcy
Law or any Restricted Subsidiary
that constitutes a Significant
Subsidiary or any group of
Restricted Subsidiaries that, taken
as a whole, would constitute a
Significant Subsidiary, for all or
substantially all of the property
of the Company or any such
Restricted Subsidiary; or
(iii) orders the liquidation of the
Company or any Restricted
Subsidiary that constitutes a
Significant Subsidiary or any group
of Restricted Subsidiaries that,
taken as a whole, would constitute
a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration. If any Event of Default (other
than an Event of Default specified in clause (i) or (j) of Section 6.01 hereof
with respect to the Company occurs and is continuing, either the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (i) or (j) of Section
6.01 hereof occurs with respect to the Company all outstanding Notes shall
become due and payable without further action or notice. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of all of the Holders rescind an acceleration and
its consequences, if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived.
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Section 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal, premium and Liquidated Damages, if any, and interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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 of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults. Holders of not less
than a majority in aggregate principal amount of the then outstanding Notes by
notice to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium and Liquidated Damages, if any, or interest on, the Notes (including in
connection with an offer to purchase) (provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may rescind
an acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority. Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method and
place of conducting any proceeding for exercising 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 conflicts with law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other
Holders or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits. A Holder of a Note may
pursue a remedy with respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
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A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
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, premium and Liquidated Damages, if
any, and interest on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), 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 such Holder.
Section 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) or (b) hereof occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal of, premium
on and Liquidated Damages, if any, and interest remaining unpaid on the Notes
and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
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 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained 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, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money
pursuant to this Article, 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 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
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Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct in writing.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.
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 does
not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Notes.
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 its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) 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. However, the Trustee shall examine the certificates and
opinions which by any provision hereof are specifically required to be
furnished to the Trustee to determine whether or not they substantially
conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein.
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(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) 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 hereof.
(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), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee. (a) The Trustee may
conclusively rely upon any document 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 such 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 such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection from
liability in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) 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.
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(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(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.
(j) 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 specific 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 certificates.
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 it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee 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 hereof.
Section 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
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Section 7.05. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if it is actually known to a Responsible
Officer of the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium on, or
Liquidated Damages, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the date of
this Indenture, and for so long as Notes remain outstanding, the Trustee shall
mail to the Holders of the Notes a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed, if any, in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee if the Notes are listed on
any stock exchange or delisted therefrom.
Section 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for its acceptance of this
Indenture and 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 promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee or any
predecessor Trustee and their agents for, and hold them harmless against any and
all losses, liabilities, damages, claims or expenses including reasonable
attorneys' fees and expenses and 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 its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and defending itself against any claim
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense shall have
been caused by its own negligence or bad faith. The Trustee shall notify the
Company promptly of any claim of which a Responsible Officer receives written
notice for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
64
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and the resignation or
removal of the Trustee.
To secure the Company's payment obligations in this Section,
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 principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(i) or (j) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee. 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.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. 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 may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) 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;
(c) a receiver, trustee, assignee, liquidator, sequestrator,
custodian or similar officer of the Company under any Bankruptcy Law or public
officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
expense of the Company), the Company, or the Holders of at least 10% in
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note
65
may petition any court of competent jurisdiction for the removal of the Trustee
and 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 successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification. There shall at
all times be a Trustee hereunder that is a corporation, bank or banking
association organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $100 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against
Company. The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge. Upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company and each of the Guarantors shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from their obligations with respect to all outstanding
Notes (including the Guarantees) on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company and the Guarantors shall be deemed to have paid and
discharged the entire Indebtedness represented by
66
the outstanding Notes (including the Guarantees), which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Notes, the Guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, Liquidated Damages, if any, and interest on such Notes when such payments
are due, (b) the Company's obligations with respect to such Notes under Article
2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance. Upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, the
Company and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be released from each of their obligations
under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.15, 4.16 and 4.17 hereof, clause (iv) of Section 5.01 hereof and Article
XI hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Guarantees, the Company and any Guarantor may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and Guarantees shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(d) through
6.01(f) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.02 or
8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a firm of independent public accountants,
to pay the principal of, premium, if any, Liquidated Damages, if
67
any, and interest on the outstanding Notes on the Stated Maturity or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the Issue Date,
there has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing, either (x) on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such
deposit); or (y) insofar as Sections 6.01(g) or 6.01(h) hereof is concerned, at
any time in the period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel (which may be subject to customary exceptions) to the effect that
after the 91st day 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;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over the other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof,
all money and non-callable Government Securities (including the proceeds
thereof) deposited with the Trustee (or other
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qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium on , if any, Liquidated
Damages, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
written request of the Company any money or non-callable Government Securities
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company. Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium on, if any, Liquidated Damages, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest or Liquidated Damages, if any, has become due
and payable shall be paid to the Company on its written request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the
New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.07. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or non-callable Government Securities
in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium on, if
any, Liquidated Damages, if any, or interest on any Note following
69
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders. Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture or the Notes without the consent of any
Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation or sale of
all or substantially all of the Company's assets pursuant to Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Note;
(e) to provide for the issuance of Additional Notes pursuant
to Section 2.01 hereof;
(f) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(g) to add any Restricted Subsidiary as an additional
Guarantor as provided in Section 11.05 hereof or to evidence the succession of
another Person to any Guarantor pursuant to Section 11.03 hereof and the
assumption by any such successor of the covenants and agreements of such
Guarantor contained herein and in the Subsidiary Guarantee of such Guarantor; or
(h) to release a Guarantor from its obligations under this
Indenture and its Subsidiary Guarantee pursuant to Section 11.05.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company and
the Guarantors in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that adversely affects its own rights, duties or immunities under this
Indenture or otherwise.
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Section 9.02. With Consent of Holders.
Except as provided below in this Section 9.02, the Company and
the Guarantors and the Trustee may amend or supplement this Indenture (including
Sections 3.09, 4.10 and 4.15 hereof) and the Notes with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any,
Liquidated Damages, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, the Notes). Section 2.10
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders as aforesaid, and upon
receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company and the Guarantors in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
directly adversely affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
Indenture.
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, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement 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. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes. However, without the consent of each Holder affected, an
amendment or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter any of the provisions with respect to the redemption of the
Notes except as provided above with respect to Sections 3.09, 4.10 and 4.15
hereof;
(c) reduce the rate of or change the time for payment of
interest on any Note;
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(d) waive a Default or Event of Default in the payment of
principal of, or interest or premium, if any, Liquidated Damages, if any, on the
Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes and
a waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders to receive
payments of principal of or premium, if any, Liquidated Damages, if any, or
interest on the Notes;
(g) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.09, 4.10 or 4.15 hereof);
(h) make any change in the ranking or priority of any Note
that would adversely affect the Holder;
(i) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture, except in accordance with the terms
of this Indenture; or
(j) make any change in the foregoing amendment and waiver
provisions.
Section 9.03. Compliance with Trust Indenture Act. Every
amendment or supplement to this Indenture or the Notes shall be set forth in a
amended or 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
of a Note is a continuing consent by the Holder of a Note 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. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes. The Trustee
may place an appropriate notation about an amendment, supplement or waiver on
any Note thereafter authenticated. The Company in exchange for all Notes may
issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.
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 Amendments, etc. The Trustee
shall sign any amended or supplemental Indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. The Company may not sign an
amendment or supplemental Indenture until the Board of
72
Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon an Officer's Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge
This Indenture will be discharged and will cease to be of
further effect, except as to surviving rights of registration of transfer or
exchange of the Notes, as to all Notes issued hereunder, when:
(a) either:
(i) all Notes that have been authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has been deposited in trust and is thereafter
repaid to the Company) have been delivered to the Trustee for
cancellation; or
(ii) all Notes that have not been delivered to the Trustee for
cancellation (A) have become due and payable or (B) will become due and
payable or will become due and payable within one year by reason of the
mailing of a notice of redemption or otherwise and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government
Securities, in amounts as will be sufficient, without consideration of
any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and Liquidated Damages, if any, and accrued
interest to the date of maturity or redemption;
(b) no Default or Event of Default has occurred and is
continuing on the date of such deposit or will occur as a result of such deposit
and such deposit will not result in a breach or violation of, or constitute a
default under, any other instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(c) the Company or any Guarantor has paid or caused to be paid
all other sums payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
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Section 10.02. Deposited Cash and Government Securities.
Subject to Section 10.03 hereof, all cash and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 10.02, the "Trustee")
pursuant to Section 10.01 hereof in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest and Liquidated
Damages, if any, but such cash and securities need not be segregated from other
funds except to the extent required by law.
Section 10.03. Repayment to Company. Any cash or non-callable
Government Securities deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest or Liquidated Damages, if any, on, any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
or Liquidated Damages, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder shall thereafter, as an unsecured creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such cash and securities, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in The
New York
Times and The Wall Street Journal (national edition), notice that such cash and
securities remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such cash and securities then remaining
will be repaid to the Company.
Section 10.04. Reinstatement. If the Trustee or Paying Agent
is unable to apply any United States dollars or non-callable Government
Securities in accordance with Sections 10.01 and 10.02, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Sections 10.01 and
10.02 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Sections 10.01 and 10.02 hereof, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, premium on, if any, or interest or Liquidated Damages, if any, on
any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE XI
SUBSIDIARY GUARANTEES
Section 11.01. Guarantee. Subject to this Article 11, each of
the Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantee to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
74
Company hereunder or thereunder, that: (a) the principal of, premium or
Liquidated Damages, if any, and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of, premium, and interest on the Notes, if
any, if lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that 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. Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor
agrees that this Subsidiary Guarantee is a general unsecured obligation of such
Guarantor and it is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this Subsidiary Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by the Company or a Guarantor either to the
Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Subsidiary Guarantee.
Section 11.02. Subordination on Guarantor Liability. Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Subsidiary Guarantee of such
Guarantor not constitute a fraudulent transfer or conveyance
75
for purposes of Bankruptcy Law or federal and state laws relating to fraudulent
conveyances or transfers or the insolvency of debtors the extent applicable to
any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor will be limited to such maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor
under its Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
Section 11.03. Guarantors May Consolidate, etc., on Certain
Terms. Except as otherwise provided in Section 11.05, a Guarantor may not sell
or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(a) immediately after giving effect to that transaction, no
Default exists; and
(b) either:
(i) subject to Section 11.05 hereof, the Person acquiring the
property in any such sale or disposition or the Person formed by or surviving
any such consolidation or merger (if other than a Guarantor or the Company)
assumes all the obligations of that Guarantor under the Notes, this Indenture
(including its Subsidiary Guarantee) and the Registration Rights Agreement on
the terms set forth herein or therein pursuant to a supplemental indenture; or
(ii) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture.
In case of any such consolidation, merger, sale or other
disposition and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee, of the Subsidiary Guarantee
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Guarantor, such successor Person shall
succeed to and be substituted for the Guarantor with the same effect as if it
had been named herein as a Guarantor. All the Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Subsidiary Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) above, any Guarantor may merge with another
Subsidiary that has no significant assets or liabilities and was incorporated
solely for the purpose of reincorporating that Guarantor in another jurisdiction
so long as the amount of our Indebtedness and the Indebtedness of our Restricted
Subsidiaries is not increased as a result of the merger.
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Section 11.04. Releases of Subsidiary Guarantee. The
Subsidiary Guarantee of a Guarantor will be released and the Guarantor will be
relieved of any obligations under the Notes, this Indenture and the Registration
Rights Agreement:
(a) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to
such transaction) a Subsidiary of the Company, if the sale or other disposition
complies with Section 4.10;
(b) in connection with any sale of such amount of Capital
Stock as would result in such Guarantor no longer being a Subsidiary to a Person
that is not (either before or after giving effect to such transaction) a
Subsidiary of the Company, if the sale complies with Section 4.10;
(c) if the Company designates any Restricted Subsidiary that
is a Guarantor as an Unrestricted Subsidiary in accordance with the applicable
provisions of this Indenture; or
(d) upon Legal Defeasance or Covenant Defeasance pursuant to
Article 8 of this Indenture.
In addition, the Subsidiary Guarantee of Xxxxxx Drilling
Offshore International, Inc. shall be automatically released and terminated upon
the release and termination of Xxxxxx Drilling Offshore International, Inc.'s
guarantee of the Company's 10?% Senior Notes due 2009.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel together to the effect that all conditions
precedent set forth in this Section 11.04 to the release of the Subsidiary
Guarantee of a Guarantor have been satisfied, to the extent such conditions can
be satisfied as of such date, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Subsidiary Guarantee.
Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 11.
Section 11.05. Additional Subsidiary Guarantees. If any
Restricted Subsidiary of the Company that is not a Guarantor (the "New
Guarantor") guarantees, assumes or in any other manner becomes liable with
respect to Indebtedness of the Company or any Guarantor (the "Other
Indebtedness"), then the New Guarantor shall, within ten business days of the
date of the New Guarantor's guarantee or assumption of the Other Indebtedness,
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall become a Guarantor and guarantee the obligations of the
Company under this Indenture and the Notes; provided that the foregoing shall
not apply to any Subsidiary that has properly been designated as an Unrestricted
Subsidiary in accordance with this Indenture. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such New Guarantor, and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer or other
77
similar laws relating to creditors' rights generally and to the principles of
equity, whether considered in a proceeding at law or in equity, and other
customary exceptions, such New Guarantor's Subsidiary Guarantee is a legal,
valid and binding obligation of such New Guarantor. Upon the release,
termination or satisfaction of the New Guarantor's Subsidiary Guarantee or
assumption of the Other Indebtedness, the New Guarantor's Subsidiary Guarantee
shall automatically be released and terminated. Upon request of the New
Guarantor, the Trustee will provide written evidence of such release and
termination.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by TIA
Section 318(c), the imposed duties shall control.
Section 12.02. Notices. Any notice or communication by the
Company or the Trustee to the others is duly given if in writing (which may be
via facsimile) and delivered in Person or mailed by first class mail.
If to the Company:
Xxxxxx Drilling Company
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile number: (000) 000-0000
Telephone number: (000) 000-0000
With a copy to:
Bracewell & Xxxxxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile number: (000) 000-0000
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If to the Trustee:
JPMorgan Chase Bank
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile number: (000) 000-0000
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be in writing and shall be deemed to have been duly given when
received.
Any notice or communication to a Holder shall be mailed by
first class mail to its address shown on the register kept by the Registrar. Any
notice or communication shall also be so mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
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 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
Section 12.04. 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, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) 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 satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
79
(b) 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;
(c) a statement that, in the opinion of 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 satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents. The Trustee may
make reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders. No past, present or future director, officer,
employee, incorporator or stockholder of the Company or any Guarantor, as such,
shall have any liability for any obligations of the Company or the Guarantors
under the Notes, this Indenture, the Subsidiary Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors. All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 12.11. Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.12. Counterpart Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
Section 12.13. Table of Contents, Headings, etc. The Table of
Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
80
[Signatures on following page]
81
SIGNATURES
Dated as of October 10, 2003
XXXXXX DRILLING COMPANY
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President & CFO
GUARANTORS:
ANACHORETA, INC.
CANADIAN RIG LEASING, INC.
CHOCTAW INTERNATIONAL RIG CORP.
CREEK INTERNATIONAL RIG CORP.
DGH, INC.
INDOCORP OF OKLAHOMA, INC.
PARDRIL, INC.
XXXXXX AVIATION, INC.
XXXXXX DRILLING (KAZAKSTAN), LTD.
XXXXXX DRILLING COMPANY EASTERN HEMISPHERE, LTD.
XXXXXX DRILLING COMPANY INTERNATIONAL, INC.
XXXXXX DRILLING COMPANY INTERNATIONAL LIMITED
XXXXXX DRILLING COMPANY LIMITED (NEVADA)
XXXXXX DRILLING COMPANY NORTH AMERICA, INC.
XXXXXX DRILLING COMPANY OF ARGENTINA, INC.
XXXXXX DRILLING COMPANY OF BOLIVIA, INC.
XXXXXX DRILLING COMPANY OF NEW GUINEA, INC.
XXXXXX DRILLING COMPANY OF NIGER
XXXXXX DRILLING COMPANY OF OKLAHOMA, INCORPORATED
XXXXXX DRILLING COMPANY OF SINGAPORE, LTD.
XXXXXX DRILLING COMPANY OF SOUTH AMERICA, INC.
XXXXXX DRILLING OFFSHORE CORPORATION
XXXXXX DRILLING OFFSHORE INTERNATIONAL, INC.
XXXXXX NORTH AMERICA OPERATIONS, INC.
XXXXXX TECHNOLOGY, INC.
XXXXXX TECHNOLOGY, LLC
XXXXXX USA DRILLING COMPANY
XXXXXX-VSE, INC.
QUAIL USA, LLC
SELECTIVE DRILLING CORPORATION
UNIVERSAL RIG SERVICE CORP.
By: /s/ XXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Indenture - Signature Page
XXXXXX DRILLING COMPANY OF MEXICO, LLC
XXXXXX DRILLING OFFSHORE USA, LLC
By: /s/ XXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX DRILLING MANAGEMENT SERVICES, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX OFFSHORE RESOURCES, L.P.
By: /s/ XXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, Xxxxxx Drilling Management
Services, Inc., General Partner
XXXXXX TOOLS, LLC
By: /s/ XXX JUNK
---------------------------------------------
Name: Xxx Junk
Title: President
XXXXXX USA RESOURCES, LLC
By: /s/ XXX JUNK
---------------------------------------------
Name: Xxx Junk
Title: President
Indenture - Signature Page
PD MANAGEMENT RESOURCES, L.P.
By: /s/ XXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, Xxxxxx Drilling Management
Services, Inc., General Partner
QUAIL TOOLS, LP
By: /s/ XXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Quail USA, LLC,
General Partner
Indenture - Signature Page
JPMORGAN CHASE BANK
as Trustee
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Trust Officer
Indenture - Signature Page
EXHIBIT A
CUSIP
[Face of Note]
9 5/8% Senior Notes due 2013
No. 001 Principal Amount $
XXXXXX DRILLING COMPANY
promises to pay to CEDE & CO., or registered assigns, the principal sum of
DOLLARS ($_____________) on October 1, 2013.
Interest Payment Dates: April 1 and October 1, commencing April 1, 2004
Record Dates: March 15 and September 15
Dated: October ___, 2003
XXXXXX DRILLING COMPANY
By:
-----------------------------------
Name:
Title:
This is one of the Global Notes referred
to in the within-mentioned Indenture:
JPMORGAN CHASE BANK
as Trustee
By:
--------------------------------
Authorized Signatory
1
[Back of Note]
9 5/8% Senior Notes due 2013
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable, pursuant to the provisions
of the Indenture]
9 5/8% Senior Notes due 2013
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. Xxxxxx Drilling Company, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 9?% per annum from October 10, 2003 until maturity and shall pay the
Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement. The Company will pay interest and Liquidated Damages, if any,
semi-annually on April 1 and October 1 of each such year, or if any such day is
not a business day, on the next succeeding business day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be April 1, 2004. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages, if
any, (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) and Liquidated Damages, if any, to the Persons
who are registered Holders at the close of business on the March 15 or September
15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.14 of the Indenture with respect to defaulted interest.
The Notes will be payable as to principal, premium, if any, Liquidated Damages,
if any, and interest at the office or agency of the Company maintained for such
purpose within or without The City and State of
New York, or, at the option of
the Company, payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest and Liquidated
Damages, if any, and premium on, the Global Note and all other Notes the Holders
of which shall have provided wire transfer instructions to the Company or the
paying agent on or prior to the applicable record date. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
2
3. Paying Agent and Registrar. Initially, JPMorgan Chase Bank,
the Trustee under the Indenture, will act as paying agent and registrar. The
Company may change any paying agent or registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture,
dated as of October 10, 2003 (the "Indenture"), among the Company, the
guarantors party thereto 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, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Company initially in the aggregate principal amount of $175
million. Subject to compliance with Section 2.01 of the Indenture, the Company
is permitted to issue Additional Notes under the Indenture in an unlimited
principal amount. Any such Additional Notes that are actually issued will be
treated as issued and outstanding Notes (and as the same class as the initial
Notes) for all purposes of the Indenture, unless the context clearly indicated
otherwise.
5. Optional Redemption. (a) Except as set forth in
subparagraph (b) of this Paragraph 5, the Company shall not have the option to
redeem the Notes prior to October 1, 2008. On or after October 1, 2008, the
Company shall have the option to redeem the Notes, in whole or in part, upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on October 1 of the
years indicated below:
Year Percentage
2008................................................................ 104.813%
2009................................................................ 103.208%
2010................................................................ 101.604%
2011 and thereafter................................................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of
this Paragraph 5, at any time prior to October 1, 2006, the Company may on any
one or more occasions redeem up to 35% of the aggregate principal amount of
Notes (which includes Additional Notes, if any) originally issued under the
Indenture at a redemption price of 109.625% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, to the
redemption date with the net cash proceeds of one or more Equity Offerings;
provided that at least 65% of the aggregate principal amount of Notes (which
includes Additional Notes, if any) originally issued remains outstanding
immediately after the occurrence of each such redemption (excluding Notes held
by the Company and its Subsidiaries); and provided further, that any such
redemption shall occur within 120 days of the date of the closing of each such
Equity Offering.
6. Mandatory Redemption. Except as set forth in paragraph 7
below, the Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
3
7. Repurchase at Option of Holder. (a) If there is a Change of
Control, the Company shall be required to make an offer (a "Change of Control
Offer") to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price in cash equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon, to the date of purchase (the "Change of
Control Payment"). Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, when the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Company shall commence an offer to all Holders (as "Asset Sale Offer")
pursuant to Section 4.10 of the Indenture to purchase the maximum principal
amount of Notes and such other Indebtedness of the Company that is pari passu
with the Notes containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redemptions with the proceeds of sales of
assets, that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Liquidated Damages, if any, thereon, to the date fixed for
the closing of such offer, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes and other
indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for any
purpose not otherwise prohibited by the Indenture. If the aggregate amount of
Notes and other indebtedness surrendered by Holders thereof exceeds the amount
of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. Holders that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.
4
10. Persons Deemed Owners. The registered Holder of a Note may
be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, notes). Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's obligations to Holders of the Notes in case of a merger or
consolidation or sale of all or substantially all of the Company's assets, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to provide for the issuance of additional
Notes in accordance with the provisions set forth in the Indenture or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest on, or Liquidated
Damages with respect to, the Notes; (ii) default in payment when due of
principal of or premium, if any, on the Notes (iii) failure by the Company or
any of its Restricted Subsidiaries to comply with the provisions of Section 4.15
or Section 5.01 of the Indenture; (iv) failure by the Company or any of its
Restricted Subsidiaries for 30 days after notice to comply with the provisions
of Sections 4.07, 4.09 or 4.10 of the Indenture; (v) failure by the Company or
any of its Restricted Subsidiaries for 60 days after notice to comply with any
of the other agreements in the Indenture; (vi) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the Issue Date, if that default (a) is
caused by a failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default"); or (b) results
in the acceleration of such Indebtedness prior to its Stated Maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more; (vii) failure by the Company or any of its Subsidiaries
to pay final judgments aggregating in excess of $15.0 million, which judgments
are not paid, discharged or stayed for a period of 60 days; (viii) except as
permitted by the Indenture, any Subsidiary Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any reason
(other than in accordance with the terms of that guarantee and the indenture) to
be in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Subsidiary
Guarantee; and (ix) certain events of bankruptcy or insolvency with respect to
the Company or any of its Restricted Subsidiaries. If any Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
5
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest or Liquidated Damages on or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
13. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not 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 or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN NET
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. 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 the Trustee may 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.
6
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Xxxxxx Drilling Company
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
-----------------------------------------------------------------------------
(Insert assignee's soc. 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.
------------------------------------------------------------------------------
Date:
--------------
Your Signature: _______________________________________
(Sign exactly as your name appears on the face of this
Note)
Signature Guarantee.
(Participant in a Recognized Signature
Guarantee Medallion Program)
8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state
the amount you elect to have purchased:
$
--------
Date:
--------------
Your Signature: _______________________________________
(Sign exactly as your name appears on the face of this
Note)
Signature Guarantee.
(Participant in a Recognized Signature
Guarantee Medallion Program)
9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized officer
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- --------- --------------
----------
(1) Insert this table only in a Global Note.
10
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Xxxxxx Drilling Company
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
[Registrar address block]
Re: 9 5/8% Senior Notes Due 2013
Reference is hereby made to the Indenture, dated as of October
10, 2003 (the "Indenture"), among Xxxxxx Drilling Company, as issuer (the
"Company"), the guarantors party thereto and JPMorgan Chase Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
______________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling
B-1
efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Definitive
Note and in the Indenture and the Securities Act.
3. [ ] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
--------------------------------------
[Insert Name of Transferor]
By:
----------------------------------
Name:
Title:
Dated: ,
--------- ----
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ANNEX A TO CERTIFICATE OF TRANSFER
4. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the :
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(b) [ ] a Restricted Definitive Note.
5. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ________), or
(ii) [ ] Regulation S Global Note (CUSIP ________), or
(iii) [ ] Unrestricted Global Note (CUSIP ________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Xxxxxx Drilling Company
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
[Registrar address block]*
Re: 9?% Senior Notes due 2013
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of October
10, 2003 (the "Indenture"), among Xxxxxx Drilling Company, as issuer (the
"Company"), the guarantors party thereto and JPMorgan Chase Bank, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance
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with the Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] 144A Global Note, Regulation S Global Note, with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated
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in the Private Placement Legend printed on the relevant Restricted Global Note
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
--------------------------------------
[Insert Name of Transferor]
By:
----------------------------------
Name:
Title:
Dated: ,
--------- ----
C-3
