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EXHIBIT 4.7
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GRANT PRIDECO, INC.
INDENTURE
RELATING TO
9 5/8% SENIOR NOTES DUE 2007
DATED AS OF DECEMBER 4, 0000
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK
TRUSTEE
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TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE......................................... 1
Section 1.01. Definitions................................................................. 1
Section 1.02. Other Definitions........................................................... 18
Section 1.03. Incorporation by Reference of Trust Indenture Act........................... 19
Section 1.04. Rules of Construction....................................................... 20
ARTICLE 2. THE NOTES.......................................................................... 20
Section 2.01. Form and Dating............................................................. 20
Section 2.02. Execution and Authentication................................................ 21
Section 2.03. Registrar and Paying Agent.................................................. 22
Section 2.04. Paying Agent to Hold Money in Trust......................................... 22
Section 2.05. Holder Lists................................................................ 22
Section 2.06. Transfer and Exchange....................................................... 23
Section 2.07. Replacement Notes........................................................... 38
Section 2.08. Outstanding Notes........................................................... 38
Section 2.09. Treasury Notes.............................................................. 39
Section 2.10. Temporary Notes............................................................. 39
Section 2.11. Cancellation................................................................ 39
Section 2.12. Defaulted Interest.......................................................... 40
Section 2.13. CUSIP Numbers............................................................... 40
ARTICLE 3. REDEMPTION AND PREPAYMENT.......................................................... 40
Section 3.01. Notices to Trustee.......................................................... 40
Section 3.02. Selection of Notes to Be Redeemed........................................... 40
Section 3.03. Notice of Redemption........................................................ 41
Section 3.04. Effect of Notice of Redemption.............................................. 42
Section 3.05. Deposit of Redemption Price................................................. 42
Section 3.06. Notes Redeemed in Part...................................................... 42
Section 3.07. Optional Redemption......................................................... 43
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Section 3.08. Repurchase at the Option of Holders......................................... 44
ARTICLE 4. COVENANTS.......................................................................... 46
Section 4.01. Payment of Notes............................................................ 46
Section 4.02. Maintenance of Office or Agency............................................. 47
Section 4.03. Reports..................................................................... 47
Section 4.04. Compliance Certificate...................................................... 48
Section 4.05. Taxes....................................................................... 48
Section 4.06. Stay, Extension and Usury Laws.............................................. 49
Section 4.07. Restricted Payments......................................................... 49
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.............. 52
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.................. 54
Section 4.10. Transactions with Affiliates............................................... 56
Section 4.11. Liens....................................................................... 58
Section 4.12. Additional Subsidiary Guarantees............................................ 58
Section 4.13. Designation of Restricted and Unrestricted Subsidiaries..................... 58
Section 4.14. Corporate Existence......................................................... 59
Section 4.15. Asset Sales................................................................. 59
Section 4.16. Offer to Repurchase Upon Change of Control.................................. 61
Section 4.17. Limitations on Line of Business............................................. 62
Section 4.18. Sale and Leaseback Transactions............................................. 62
Section 4.19. Payments for Consent........................................................ 63
Section 4.20. Suspension of Covenants..................................................... 63
ARTICLE 5. SUCCESSORS......................................................................... 64
Section 5.01. Merger, Consolidation, or Sale of Assets.................................... 64
Section 5.02. Successor Corporation Substituted........................................... 65
ARTICLE 6. DEFAULTS AND REMEDIES.............................................................. 65
Section 6.01. Events of Default........................................................... 65
Section 6.02. Acceleration................................................................ 67
Section 6.03. Other Remedies.............................................................. 68
Section 6.04. Waiver of Past Defaults..................................................... 68
Section 6.05. Control by Majority......................................................... 68
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Section 6.06. Limitation on Suits......................................................... 69
Section 6.07. Rights of Holders of Notes to Receive Payment............................... 69
Section 6.08. Collection Suit by Trustee.................................................. 69
Section 6.09. Trustee May File Proofs of Claim............................................ 70
Section 6.10. Priorities.................................................................. 70
Section 6.11. Undertaking for Costs....................................................... 71
Section 6.12. Restoration of Rights and Remedies.......................................... 71
Section 6.13. Rights and Remedies Cumulative.............................................. 71
Section 6.14. Delay or Omission Not Waiver................................................ 72
ARTICLE 7. TRUSTEE............................................................................ 72
Section 7.01. Duties of Trustee........................................................... 72
Section 7.02. Rights of Trustee........................................................... 73
Section 7.03. Individual Rights of Trustee................................................ 74
Section 7.04. Trustee's Disclaimer........................................................ 74
Section 7.05. Notice of Defaults.......................................................... 75
Section 7.06. Reports by Trustee to Holders of the Notes.................................. 75
Section 7.07. Compensation and Indemnity.................................................. 75
Section 7.08. Replacement of Trustee...................................................... 76
Section 7.09. Successor Trustee by Merger, etc............................................ 77
Section 7.10. Eligibility; Disqualification............................................... 78
Section 7.11. Preferential Collection of Claims Against Company........................... 78
ARTICLE 8. NOTE GUARANTEES.................................................................... 78
Section 8.01. Subsidiary Guarantees....................................................... 78
Section 8.02. Additional Guarantees....................................................... 80
Section 8.03. Limitation on Guarantor Liability........................................... 80
Section 8.04. Merger and Consolidation of Guarantors...................................... 81
Section 8.05. Release..................................................................... 82
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER................................................... 82
Section 9.01. Without Consent of Holders of Notes......................................... 82
Section 9.02. With Consent of Holders of Notes............................................ 83
Section 9.03. Compliance with Trust Indenture Act......................................... 85
Section 9.04. Revocation and Effect of Consents........................................... 85
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Section 9.05. Notation on or Exchange of Notes............................................ 85
Section 9.06. Trustee to Sign Amendments, etc............................................. 85
ARTICLE 10. MISCELLANEOUS...................................................................... 86
Section 10.01. Trust Indenture Act Controls................................................ 86
Section 10.02. Notices..................................................................... 86
Section 10.03. Communication by Holders of Notes with Other Holders of Notes............... 87
Section 10.04. Certificate and Opinion as to Conditions Precedent.......................... 87
Section 10.05. Statements Required in Certificate or Opinion............................... 88
Section 10.06. Rules by Trustee and Agents................................................. 88
Section 10.07. No personal Liability of Directors, Officers, Employees and Stockholders.... 88
Section 10.08. Governing Law............................................................... 89
Section 10.09. No Adverse Interpretation of Other Agreements............................... 89
Section 10.10. Successors.................................................................. 89
Section 10.11. Severability................................................................ 89
Section 10.12. Counterpart Originals....................................................... 89
Section 10.13. Table of Contents, Headings, etc............................................ 89
EXHIBITS
Exhibit A: FORM OF NOTE
Exhibit B: FORM OF CERTIFICATE OF TRANSFER
Exhibit C: FORM OF CERTIFICATE OF EXCHANGE
Exhibit D: FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
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CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT
TIA Section Indenture Section
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310 (a)(1).......................................................... 7.10
(a)(2) ........................................................ 7.10
(a)(3)......................................................... N.A.
(a)(4)......................................................... N.A.
(a)(5)......................................................... 7.10
(i)(b)......................................................... 7.10
(ii)(c)........................................................ N.A.
311 (a)............................................................. 7.11
(b)............................................................ 7.11
(iii)(c)....................................................... N.A.
312 (a)............................................................. 2.06
(b)............................................................ 10.03
(iv)(c)........................................................ 10.03
313 (a)............................................................. 7.06
(b)(2)......................................................... 7.07
(v)(c)......................................................... 7.06;10.02
(vi)(d)........................................................ 7.06
314 (a)............................................................. 4.03;
4.04 (a);
10.02
(c)(1)......................................................... 10.04
(c)(2)......................................................... 10.04
(c)(3)......................................................... N.A.
(vii)(e)....................................................... 10.05
(f)............................................................ N.A.
315 (a)............................................................. 7.01
(b)............................................................ 7.05,10.02
(A)(c)......................................................... 7.01
(d)............................................................ 7.01
(e)............................................................ 6.11
316 (a)(last sentence).............................................. 2.10
(a)(1)(A)...................................................... 6.05
(a)(1)(B)...................................................... 6.04
(a)(2)......................................................... N.A.
(b)............................................................ 6.07
(B)(c)......................................................... 2.12
317 (a)(1).......................................................... 6.08
(a)(2)......................................................... 6.09
(b)............................................................ 2.05
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318 (a)............................................................. 10.01
(b)............................................................ N.A.
(c)............................................................ 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
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INDENTURE, dated as of December 4, 2000 (the "Indenture"),
among Grant Prideco, Inc., a Delaware corporation (the "Company"), the
Subsidiary Guarantors identified herein and United States Trust Company of New
York, a New York corporation, as trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree
as follows for the benefit of each other and for the equal and ratable benefit
of the Holders of the 9 5/8% Senior Notes due 2007 (the "Initial Notes") and the
9 5/8% Senior Notes due 2007 to be used in exchange for such Initial Notes in
the Exchange Offer (the "Exchange Notes" and, together with the Initial Notes
and any notes that may be issued in the future in accordance with Section
2.01(d), the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"144A Global Note" means a global note in substantially 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 shall be issued in a denomination equal
to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Additional Notes" means any additional notes that the Company
may issue pursuant to Section 2.01 of this Indenture.
"Acquired Debt" means, with respect to any specified person,
(1) Indebtedness of any other person existing at the time the other person is
merged with or into or became a Restricted Subsidiary of the 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 (2) 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, means 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 will be deemed to be controlling. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
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"Applicable Procedures" means, with respect to any transfer or
exchange of or for any beneficial interests in any Global Note, the rules and
the procedures of the Depositary that apply to such transfer or exchange.
"Asset Sale" means (1) the sale, lease, conveyance or other
disposition of any assets or rights, other than sales of inventory or equipment
in the ordinary course of business consistent with past practices; provided that
the sale, conveyance or other disposition of all or substantially all of the
Company's assets and its Restricted Subsidiaries taken as a whole will be
governed by Section 4.16 and/or Section 5.01 and not by Section 4.15; and (2)
the issuance of Equity Interests in any of the Restricted Subsidiaries or the
sale of Equity Interests in any of the Restricted Subsidiaries.
Notwithstanding the preceding, the following items will not be
deemed to be Asset Sales (1) any single transaction or series of related
transactions that involves assets having a fair market value of less than $1.0
million; (2) a transfer of assets between or among the Company and its
Restricted Subsidiaries; (3) an issuance of Equity Interests by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary; and (4) a
Restricted Payment or Permitted Investment that is permitted by 4.07.
"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 Section
13(d)(3) 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 a
corresponding meaning.
"Board of Directors" means (1) with respect to a corporation,
the board of directors or a duly authorized committee of the board of directors
of the corporation; (2) with respect to a partnership, the board of directors or
a duly authorized committee of the board of directors of the general partner of
the partnership; and (3) with respect to any other person, the board or
committee of such person serving a similar function.
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"Board Resolution" means, with respect to any entity, a copy
of a resolution certified by the Secretary or Assistant Secretary of that entity
to have been duly adopted by the Board of Directors of that entity and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Broker Dealer" has the meaning set forth in the Registration
Rights Agreement.
"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 (1) in the case of a corporation,
corporate stock; (2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and (4) 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 (1) United States dollars; (2)
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 six
months from the date of acquisition; (3) 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 a Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (4)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with
any financial institution meeting the qualifications specified in clause (3)
above; (5) commercial paper having the highest rating obtainable from Moody's or
S&P and in each case maturing within six months after the date of acquisition;
and (6) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (5) of this
definition, including any such funds of or to which the Trustee or any Affiliate
of the Trustee is the sponsor, an advisor, a trustee or a manager.
"Change of Control" means the occurrence of any of the
following (1) 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 properties or assets of
the Company and its Restricted Subsidiaries, taken as a whole, to any "person,"
as that term is used in Section 13(d)(3) of the Exchange Act; (2) the adoption
of a plan relating to the liquidation or dissolution of the Company; (3) the
consummation of any transaction, including, without limitation, any merger or
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consolidation, the result of which is that any "person," as defined in clause
(1) above becomes the ultimate Beneficial Owner, directly or indirectly, of more
than 50% of the Company's Voting Stock, measured by voting power rather than
number of shares; (4) the first day on which a majority of the members of the
Company's entire Board of Directors are not Continuing Directors; or (5) the
Company's consolidation or merger with or into, any person, or the consolidation
or merger of any person with or into, the Company, in any such event pursuant to
a transaction in which any of the Company's outstanding Voting Stock or such
other person is converted into or exchanged for cash, securities or other
property, other than any such transaction where the Company's Voting Stock
outstanding immediately prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or transferee
person, or the direct parent company of the surviving or transferee person,
which, immediately after giving effect to such issuance, constitutes a majority
of the outstanding shares of such Voting Stock of such surviving or transferee
person, or the direct parent company of the surviving or transferee person.
For the purposes of this definition of "Change of Control,"
any transfer of any equity of an entity that was formed for the purpose of
acquiring the Company's Voting Stock will be deemed to be a transfer of an
Equity Interest in the Company.
"Change of Control Triggering Event" means, the occurrence of
a Change of Control, or if the Company is not subject to the Suspended
Covenants, there occurs both a Change of Control and a Rating Decline.
"Clearstream" means Clearstream Banking, societe anonyme,
Luxembourg.
"Closing Price" on any trading day with respect to the per
share price of any shares of common stock means the last reported sale price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if the shares of common stock are not listed
or admitted to trading on that exchange, on the principal national securities
exchange on which the shares are listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System
or, if the shares are not listed or admitted to trading on any national
securities exchange or quoted on such automated quotation system but the Company
if a foreign issuer, as defined in Rule 3b-4(b) under the Exchange Act, and the
principal securities exchange on which the shares are listed or admitted to
trading is a Designated Offshore Securities Market, as defined in Rule 902(a)
under the Securities Act, the average of the reported closing bid and asked
prices regular way on that principal exchange, or, if the shares are not listed
or admitted to trading on any national securities exchange or quoted on that
automated quotation system and the Company and principal securities exchange do
not meet such requirements, the average of the closing bid and asked prices in
the over-the-counter marked as furnished by any New York Stock Exchange member
firm that is
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selected from time to time by the Company for that purpose and is
reasonably acceptable to the Trustee.
"Commission" means the Securities and Exchange Commission.
"common stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that person's equity, other than preferred
stock of that person, whether now outstanding or issued after the date the Notes
are issued, including without limitation, all series and classes of that equity.
"Consolidated Cash Flow" means, with respect to any specified
person for any period, the Consolidated Net Income of such person for such
period, (1) plus 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 or in connection with a future write-down of the Company's or its
Restricted Subsidiaries' investment in Oil Country Tubular Limited in an amount
not to exceed $17.6 million, in either case to the extent such losses were
deducted in computing such Consolidated Net Income; (2) plus 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; (3) plus 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), to the extent that any such expense
was deducted in computing such Consolidated Net Income; (4) plus depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to the
extent that it represents an accrual of or reserve for cash expenses in any
future period) of such person and its Restricted Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income; (5) minus 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.
"Consolidated Net Income" means, with respect to any specified
person for any period, the aggregate of the Net Income of such person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided, however, that, (1) 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 will be included only to the extent of the
amount of dividends or distributions paid in
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cash to the specified person or a Restricted Subsidiary of the person; (2) the
Net Income of any Restricted Subsidiary 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 (other than those permitted under Section 4.08), judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders; (3) the Net Income of any person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition will be excluded; and (4) 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 Company's Board of Directors who (1) was a member of such
Board of Directors on the date of this Indenture; or (2) 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 such Board 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 10.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Facilities" means, one or more debt facilities
(including, without limitation, the Revolving Credit Facility) 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, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor 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.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially 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 person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
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"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 (other than upon an optional
redemption by the Company), matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or 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 will 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 unless such repurchase or redemption
complies with Section 4.07.
"Domestic Subsidiary" means any one of the Company's
Subsidiaries 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).
"ERISA" means the Employee Retirement Income Security Act of
1974 and regulations promulgated thereunder.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities and Exchange Act of 1934,
as amended.
"Exchange Notes" means the Notes to be issued in the Exchange
Offer pursuant to Section 2.06 hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries (other than Indebtedness under the Revolving Credit
Facility) in existence on the Issue Date, until such amounts are repaid.
"Fixed Charges" means, with respect to any specified person
for any period, the sum, without duplication, of (1) the consolidated interest
expense of such
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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; plus (2) the
consolidated interest of such person and its Restricted Subsidiaries that was
capitalized during such period; plus (3) 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 (4) the product of (a) all dividends, whether paid or accrued and whether
or not in cash, on any series of preferred stock of such person or any of its
Restricted Subsidiaries, other than dividends on Equity Interests payable solely
in the Company's Equity Interests (other than Disqualified Stock) or to the
Company or one of its Restricted Subsidiaries, 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 period, the ratio of the Consolidated Cash Flow of such
person and its Restricted Subsidiaries for such period to the Fixed Charges of
such person and its Restricted Subsidiaries for such period. In the event that
the specified person or any of its Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (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 preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio, (1) 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, during the four-quarter
reference period or subsequent to such reference period and on or prior to the
Calculation Date will be given pro forma effect (calculated in accordance with
Regulation S-X) as if they had occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period will be
calculated without giving effect to clause (3) of the proviso set forth in the
definition of Consolidated Net Income; (2) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or
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businesses disposed of prior to the Calculation Date, will be excluded; and (3)
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 set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the date of this Indenture.
"Global Note Legend" means the legend set forth in Section
2.06(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 Notes and the Unrestricted Global Notes in the form of
Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(c) or
2.06(f) hereof.
"guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantors" means each of (1) the Domestic Subsidiaries; and
(2) any other Subsidiary that executes a Subsidiary Guarantee in accordance with
the provisions of this Indenture; and their respective successors and assigns.
"Hedging Obligations" means, with respect to any specified
person, the obligations of such person incurred in the normal course of business
and consistent with past practices and not for speculative purposes under (1)
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements; (2) foreign exchange contracts and currency protection
agreements entered into with one or more financial institutions is designed to
protect the person or entity entering into the agreement against fluctuations in
interest rates or currency exchange rates with respect to Indebtedness incurred
and not for purposes of speculation; (3) any commodity futures contract,
commodity option or other similar agreement or arrangement designed to protect
against fluctuations in the price of commodities used by that entity at the
time; and (4) other agreements or arrangements designed to protect such person
against fluctuations in interest rates or currency exchange rates.
"incur" means create, incur, issue, assume, guarantee or
otherwise become liable, directly or indirectly, contingently or otherwise, for
any Indebtedness. The term
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"incurrence" when used as a noun shall have a correlative meaning. The accretion
of principal of a non-interest bearing or other discount security shall not be
deemed the incurrence of Indebtedness.
"Indebtedness" means, with respect to any specified person,
any indebtedness of such person, whether or not contingent (1) in respect of
borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof); (3) in
respect of banker's acceptances; (4) representing Capital Lease Obligations; (5)
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 (6) representing any Hedging Obligations, if and to the extent any
of the preceding items (other than letters of credit and 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 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 (1) the accreted value of the Indebtedness, in the case of any Indebtedness
issued with original issue discount; and (2) 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 in accordance with Article 9 hereof.
"Indirect Participant" means a person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means $200.0 million in aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Xxxxxx Brothers Inc., Deutsche Bank
Securities Inc., UBS Warburg LLC and Xxxxxxx & Company International.
"Institutional Accredited Investor" means an "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Investment Grade Rating" means a rating equal to or higher
than Baa3 (or the equivalent) by Moody's or BBB- (or the equivalent) by S&P.
"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 commission, travel and similar advances to
officers and employees made in the ordinary
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course of business), 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 of its Restricted Subsidiaries sells
or otherwise disposes of any Equity Interests of any of its direct or indirect
Subsidiaries such that, after giving effect to any such sale or disposition,
such person is no longer a Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Equity Interests of such Restricted
Subsidiary not sold or disposed of in an amount determined as provided in
Section 4.07(d). The acquisition by the Company or any of its Restricted
Subsidiaries of a person that holds an Investment in a third person will be
deemed to be an Investment by the Company or such Restricted Subsidiary in such
third person in an amount equal to the fair market value of the Investment held
by the acquired person in such third person in an amount determined as provided
Section 4.07(d).
"Issue Date" means the date that any Notes are issued under
this Indenture.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the 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 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 the Registration Rights Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor to the rating agency business thereof.
"Net Income" means, with respect to any specified 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, (1)
any gain (but not loss), 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 Restricted
Subsidiaries or the extinguishment of any Indebtedness of such person or any of
its Restricted Subsidiaries; and (2) any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain (but
not loss).
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"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 or brokerage
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, and amounts required to be applied to the repayment of
Indebtedness 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.
"Non-Recourse Debt" means Indebtedness (1) 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) constitutes the lender; (2) no default with respect to which
(including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice, lapse of
time of 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 thereof to be accelerated or payable prior to
its stated maturity; and (3) 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 to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company
pursuant to the Company's Offering Memorandum, dated November 29, 2000.
"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, and Assistant Treasurer,
the Controller, the Secretary, any Assistant Secretary or any Vice-President of
such person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by at least 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
Sections 10.04 and 10.05.
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"Opinion of Counsel" means an opinion of legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and 10.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"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 and set
forth in an Officers' Certificate delivered to the Trustee.
"Permitted Investments" means (1) any Investment in the
Company or in any of its Restricted Subsidiaries; (2) any Investment in Cash
Equivalents; (3) any Investment by the Company or any of its Restricted
Subsidiaries in a person engaged in a Permitted Business, if as a result of such
Investment, (a) such person becomes one of the Company's Restricted
Subsidiaries; 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 any of its Restricted Subsidiaries; (4) 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 Section 4.15; (5)
any acquisition of assets solely in exchange for the issuance of the Company's
Equity Interests (other than Disqualified Stock); (6) any Investments received
in compromise of obligations of such persons incurred in the ordinary course 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;
(7) Hedging Obligations permitted to be incurred under Section 4.09; and (8)
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
$15.0 million.
"Permitted Liens" means (1) Liens on assets of the Company and
any Guarantor securing Credit Facilities; (2) Liens in favor of the Company or
the Guarantors; (3) Liens on property of a person existing at the time such
person is merged with or into or consolidated with the Company or any of its
Subsidiaries; provided, however, that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the person merged into or consolidated with the Company or
the Subsidiary; (4) Liens on property existing at the time of acquisition of the
property by the Company or any of its Subsidiaries; provided, however, that such
Liens were in existence prior to the contemplation of such acquisition; (5)
Liens to secure the performance of statutory obligations, surety or appeal
bonds,
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performance bonds or other obligations of a like nature incurred in the ordinary
course of business; (6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(iv) covering only the assets acquired
with such Indebtedness; (7) Liens existing on the date of this Indenture; (8)
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 concluded, provided that any reserve or other
appropriate provision as is required in conformity with GAAP has been made
therefor; and (9) Liens incurred by the Company or any of its Restricted
Subsidiaries in the ordinary course of business with respect to obligations that
do not exceed $5.0 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted 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 Restricted Subsidiaries
(other than intercompany Indebtedness); provided, however, that (1) 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);
(2) 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; (3) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and 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 (4) such Indebtedness is incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"preferred stock" means, with respect to any person, any and
all shares, interests, participations or other equivalents, however designated,
whether voting or non-voting, of that person's equity that have a preference as
to the payment of dividends or as to payments upon a liquidation of that person,
whether now outstanding or issued after the date hereof, including without
limitation, all series and classes of such equity.
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
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"Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company pursuant to an effective registration
statement under the Securities Act.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Agency" means each of S&P and Moody's, or if S&P or
Moody's or both shall not make a rating on the Notes publicly available, a
nationally recognized statistical rating agency or agencies, as the case may be,
selected by the Company (as certified by a resolution of the Company's Board of
Directors) which shall be substituted for S&P or Moody's, or both, as the case
may be.
"Rating Category" means (1) with respect to S&P, any of the
following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent
successor categories); (2) with respect to Moody's any of the following
categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca and C (or equivalent successor
categories) and (3) the equivalent of any such category of S&P and Moody's used
by another Rating Agency. In determining whether the rating of the Notes has
decreased by one or more gradations, gradations within Rating Categories (+ and
- for S&P: 1, 2 and 3 for Moody's; or the equivalent gradations for another
Rating Agency) shall be taken into account (e.g., with respect to S&P, a decline
in a rating from BB+ to BB, as well from BB- to B, will constitute a decrease of
one gradation).
"Rating Decline" means (1) a decrease of two or more
gradations (including gradations within Rating Categories as well as between
Rating Categories) in the rating of the Notes by either Rating Agency or (2) a
withdrawal of the rating of the Notes by either Rating Agency, provided,
however, that such decrease or withdrawal occurs on, or within 90 days
following, the date of public notice of the occurrence of a Change of Control or
of the intention by the Company to effect a Change of Control, which period
shall be extended so long as the rating of the Notes is under publicly announced
consideration for downgrade by either Rating Agency.
"Reference Period" means the latest two fiscal quarters for
which financial statements are publicly available.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 4, 2000, by and among the Company and the
Initial Purchasers, 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 between the Company 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 under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
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"Regulation S Global Note" means a Global Note in
substantially 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 any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a permanent Global Note in
substantially 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 or a nominee of the Depositary, representing a series
of Notes that bear the Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day distribution compliance
period as defined in Regulation S.
"Restricted Subsidiary" of a person means any Subsidiary of
such person that is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means that certain Revolving
Credit and Letter of Credit Agreement, dated as of April 14, 2000, by and among
the Company and a syndicate of United States and Canadian banks, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, modified,
renewed, refunded, replaced or refinanced from time to time.
"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.
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"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx Companies, Inc., or any successor to the rating agency business
thereof.
"sale and leaseback transaction" of any person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such person of any property or asset of such
person which has been or is being sold or transferred by such person more than
365 days after the acquisition thereof or the completion of construction or
commencement of operation thereof to such lender or investor or to any person to
whom funds have been or are to be advanced by such lender or investor on the
security of such property or asset. The stated maturity of such arrangement is
the date of the last payment of rent or any other amount due under such
arrangement prior to the first date on which such arrangement may be terminated
by the lessee without payment of a penalty.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Securities Act" means the Securities Act of 1933, as amended.
"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 will 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 (1)
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
(2) any partnership (a) the sole general partner or the managing general 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 the guarantee of the Notes by
each of the Guarantors pursuant to this Indenture and in the form of the
guarantee endorsed on the
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form of note attached as Exhibit A to this Indenture and any additional
guarantee of the Notes to be executed by any of the Company's Subsidiaries
pursuant to Section 8.02 hereof.
"Unrestricted Global Note" means a permanent Global Note in
substantially 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 or a nominee of the Depositary, representing a series
of Notes that do not bear the Private Placement Legend.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Subsidiary" means any one of the Company's
Subsidiaries (or any successor to any of them) that is designated by the
Company's Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution, but only to the extent that such Subsidiary (1) has no Indebtedness
other than Non-Recourse Debt; (2) is not party to any agreement, contract,
arrangement or understanding with the Company or any of its Restricted
Subsidiaries 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 or such Restricted Subsidiary; (3) 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; (4) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and (5)
has at least one director on its Board of Directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended.
"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 of such person.
"Xxxxxxxxxxx" means Xxxxxxxxxxx International, Inc., a
Delaware corporation.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (1) 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,
by (b) the number of years (calculated to
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the nearest one-twelfth) that will elapse between such date and the making of
such payment; by (2) the then outstanding principal amount of such Indebtedness.
Section 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ------------
"Additional Amounts" Section 5.03
"Additional Notes" Section 2.02
"Affiliate Transaction" Section 4.10
"Asset Sale Offer" Section 4.10
"Authentication Order Section 2.02
"Benefited Party" Section 8.01
"Change of Control Offer" Section 4.14
"Change of Control Payment" Section 4.14
"Change of Control Payment Date" Section 4.14
"Company" Preamble
"Event of Default" Section 6.01
"Excess Proceeds" Section 4.15
"Holders" Preamble
"Indenture" Preamble
"Interest Payment Date" Section 2.03
"Make-Whole Premium" Section 3.07
"Offer Amount" Section 3.02
"Offer Period" Section 3.02
"Payment Default" Section 6.01
"Purchase Date" Section 3.02
"Regular Record Date" Section 2.03
"Reinstatement Date" Section 4.20
"Repurchase Offer" Section 3.02
"Suspended Covenants" Section 4.20
"Treasury Yield" Section 3.07
"Trustee" Preamble
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a holder of a Note;
"indenture to be qualified" means this Indenture;
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"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by
Commission rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) "including" means "including without limitation";
provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor sections or
rules adopted by the Commission from time to time.
(g) References in this Indenture to "Article" and "Section"
shall be to the Articles and Sections of this Indenture unless expressly
indicated otherwise.
ARTICLE 2.
THE NOTES
Section 2.01. FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange rule
or usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof. The terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
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However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Form of 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 Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the equivalent procedures of
Clearstream shall be applicable to transfers of beneficial interests in Global
Notes that are held by Participants through Euroclear or Clearstream.
(d) Subject to compliance with the provisions of Section 4.09,
the Company may issue Additional Notes under this Indenture; provided, however,
that in no event may more than $400.0 million aggregate principal amount of
Notes be issued under this Indenture.
Section 2.02. EXECUTION AND AUTHENTICATION.
(a) One Officer shall sign the Notes for the Company by manual
or facsimile signature. The Company's seal may be reproduced on the Notes and
may be in facsimile form.
(b) 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.
(c) A Note shall not be valid until authenticated by the
manual signature of a Responsible Officer of the Trustee. The signature of a
Responsible Officer of the Trustee in the certificate of authentication on a
Note shall be conclusive evidence that the Note has been authenticated under
this Indenture.
(d) 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
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aggregate principal amount stated in Section 2.01(d) and 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 2.07 hereof.
(e) 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 2.03. REGISTRAR AND PAYING AGENT.
(a) 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.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
(d) The Global Notes shall be initially registered in the name
of Cede & Co., nominee of DTC.
Section 2.04. 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 shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, and premium, Liquidated Damages, if any, or interest
on, the Notes, and shall 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 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
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bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
Section 2.05. 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 ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days or such shorter time as the Trustee may allow before each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date, as the Trustee may reasonably
require of the names and addresses of the Holders of Notes, including the
aggregate principal amount of Notes held by each Holder.
Section 2.06. 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. Global Notes
will be exchanged by the Company for Definitive Notes if (i) the Depositary (x)
notifies the Company that it is unwilling or unable to continue to act as
depositary for the Global Notes and the Company thereupon fails to appoint a
successor Depositary, or (y) has ceased to be a clearing agency registered under
the Exchange Act and the Company fails to appoint a successor, and, in either
case, a successor Depositary is not appointed by the Company within 90 days
after the date of such notice from the Depositary, (ii) the Company in its sole
discretion determines that the Global Notes should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee, or (iii)
there has occurred and is continuing a Default or Event of Default. 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 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in
Sections 2.06(a), 2.07, 2.10 and 9.05 hereof, although beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b),
(c), (d) 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
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shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may
be transferred to persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global
Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to
the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not
be made to a U.S. person or for the account or benefit of a
U.S. person (other than the Initial Purchasers). Beneficial
interests in any Unrestricted Global Note may be transferred
to persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written
orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this
Section 2.06(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 2.06(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),
subject to Section 2.06(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 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 (1) above. Upon
consummation of an Exchange Offer by the Company in accordance
with Section 2.06(f) hereof, the requirements of this Section
2.06(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 2.06(h)
hereof.
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(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any
Restricted Global Note may be transferred to a person who
takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with
the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall 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; or
(B) if the transferee shall take
delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2)
thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any Holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the
exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
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, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a
person participating in the distribution of the
Exchange Notes or (3) a person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant
to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such
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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, the
Company or the Trustee so requests or if the
Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to
the Registrar or the Company, if applicable,
to the effect that such exchange or transfer
is in compliance with the Securities Act and
that the restrictions on transfer contained
herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when a Restricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes
to Restricted Definitive Notes. Restricted Global Notes and
beneficial interests therein shall be exchangeable for
Definitive Notes if (i) the Depositary (x) notifies the
Company that it is unwilling or unable to continue to act as
depositary for the Restricted Global Notes and the Company
thereupon fails to appoint a successor Depositary, or (y) has
ceased to be a clearing agency registered under the Exchange
Act and the Company fails to appoint a successor, and, in
either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the
Depositary, (ii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of the
Definitive Notes or (iii) there
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shall have occurred and be continuing a Default with respect
to the Notes. In all cases, Definitive Notes delivered in
exchange for any Restricted Global Note or beneficial
interests therein shall be registered in the names, and issued
in any approved denominations, requested by or on behalf of
the Depositary (in accordance with the Applicable Procedures).
In such event, the Trustee shall cause the Restricted Global
Notes to be canceled accordingly pursuant to Section 2.11 hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
person designated a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the
Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Restricted Global Notes
to Unrestricted Definitive Notes. A Holder of a beneficial
interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a person who takes
delivery thereof in the form of an Unrestricted Definitive
Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder of such
beneficial interest, in the case of an exchange, or
the transferee, in the case of a transfer, certifies
in the Letter of Transmittal that it is not (1) a
broker-dealer, (2) a person participating in the
distribution of the Exchange Notes or (3) a person
who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to
the Shelf Registration Statement in accordance with
the Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such
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beneficial interest for a Definitive Note
that does not bear the Private Placement
Legend, a certificate from such Holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the Holder of such
beneficial interest in a Restricted Global
Note proposes to transfer such beneficial
interest to a person who shall take delivery
thereof in the form of a Definitive Note
that does not bear the Private Placement
Legend, a certificate from such Holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar, the Company or the Trustee so
requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable
to the Registrar, the Trustee or the Company, if
applicable, to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes
to Unrestricted Definitive Notes. Unrestricted Global Notes
and beneficial interests therein shall be exchangeable for
Definitive Notes if (i) the Depositary (x) notifies the
Company that it is unwilling or unable to continue as
depositary for the Unrestricted Global Notes, or (y) has
ceased to be a clearing agency registered under the Exchange
Act and the Company fails to appoint a successor, and, in
either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the
Depositary, (ii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of the
Definitive Notes or (iii) there shall have occurred and be
continuing a Default or Event of Default with respect to the
Notes. In all cases, Definitive Notes delivered in exchange
for any Unrestricted Global Note or beneficial interests
therein will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the
Depositary (in accordance with the Applicable Procedures). In
such event, the Trustee shall cause the Unrestricted Global
Notes to be canceled accordingly pursuant to Section 2.11
hereof, and the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 with
respect to such Note, the Trustee shall authenticate and
deliver to the person designated in the instructions a
Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall be registered in
such
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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 Definitive Notes to the persons in
whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement
Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer
such Restricted Definitive Notes to a person who takes
delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of
the following documentation:
(A) if the Holder of such Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b)
thereof;
(B) if such Restricted Definitive Note
is being transferred to a QIB in accordance with Rule
144A under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note
is being transferred to a Non-U.S. person in an
offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof;
(D) if such Restricted Definitive Note
is being transferred pursuant to an exemption from
the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act
to a person who is an affiliate (as defined in Rule
144) of the Company, a certificate to the effect set
forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note
is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the
registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in
Exhibit B hereto, including the
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certifications, certificates and Opinion of
Counsel required by item (3) thereof, if
applicable; or
(F) if such Restricted Definitive Note
is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in
item (3)(b) thereof,
the Trustee shall cancel the Restricted Definitive Note, and increase or cause
to be increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, in the case of clause (C) above, the Regulation S Global
Note, in the case of clauses (D) through (F) above, the appropriate Restricted
Global Note in accordance with Section 2.11 hereof.
(ii) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a person who takes delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a person participating in
the distribution of the Exchange Notes or (3) a
person who is an affiliate (as defined in Rule 144)
of the Company;
(B) such transfer is effected pursuant to
the Shelf Registration in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted
Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof;
or
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(2) if the Holder of such
Definitive Notes proposes to transfer such
Notes to a person who shall take delivery
thereof in the form of a beneficial interest
in the Unrestricted Global Note, a
certificate from such Holder in the form of
Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar, the
Trustee or the Company so requests or if the
Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to
the Registrar, the Trustee or the Company,
if applicable, 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 2.06(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an
Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer
such Definitive Notes to a person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global
Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) 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 2.02 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 2.06(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 his attorney, duly authorized in writing. In addition, the
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requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(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 shall be made
pursuant to Rule 144A under the Securities Act, then
the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in
item (1) thereof; and
(B) if the transfer shall 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 shall be made
pursuant to any other exemption from the
registration requirements of the Securities Act,
then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive
Note or transferred to a person or persons who take delivery
thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a person participating in
the distribution of the Exchange Notes or (3) a
person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected
pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
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(D) the Registrar receives the following:
(1) if the Holder of such
Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted
Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d)
thereof; or
(2) if the Holder of such
Restricted Definitive Notes proposes to
transfer such Notes to a person who shall
take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit B
hereto, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar, the Trustee or the Company so
requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar, the Trustee and the
Company, if applicable, to the effect that such
exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend
are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes
may transfer such Notes to a person who takes delivery thereof
in the form of an Unrestricted Definitive Note. Upon receipt
of a request to register such a transfer, the Registrar shall
register the transfer of the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
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 Restricted Global Notes tendered for acceptance by persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
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 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, upon receipt of an
Authentication Order in accordance with Section 2.02 with respect to such Notes,
the Trustee shall authenticate and deliver to the persons
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designated by the Holders of Definitive Notes so accepted Unrestricted
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 "U.S. SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT. 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 U.S.
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S
UNDER THE U.S. SECURITIES ACT, (2) AGREES THAT IT 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 U.S. 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 THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WERE THE OWNERS 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 U.S. 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 U.S. SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
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NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO CERTAIN INSTITUTIONAL ACCREDITED INVESTORS WITHIN THE
MEANING OF SUBPARAGRAPHS (A)(1), (2) OR (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE U.S. SECURITIES ACT
OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE U.S. 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 PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THAT
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR IS COMPLETED
AND DELIVERED BY THE TRANSFEROR. 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 MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
U.S. SECURITIES ACT."
(B) Notwithstanding the foregoing, any
Global Note or Definitive Note issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii) or (e)(iii) to this Section 2.06
(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:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE
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DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(h) Cancellation or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a person who shall 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 shall 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, upon receipt of an
Authentication Order in
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accordance with Section 2.02 with respect to such Notes,
the Trustee shall authenticate Global Notes and Definitive
Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of
a beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 4.16 and 9.05 hereof).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes
or Definitive Notes shall be the valid obligations of the
Company, evidencing the same 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 Company shall not be required (A) to
issue, to register the transfer of or to exchange any Notes
during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed
in part or (c) to register the transfer of or to exchange a
Note between a record date and the next succeeding interest
payment date.
(vi) Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the person in whose name any Note
is registered on the registry relating to the Notes 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 2.02 hereof.
(viii) All certifications, certificates and Opinions
of Counsel required to be submitted to the Registrar, the
Company and the Trustee pursuant to
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this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Trustee or the Registrar
pursuant to this Section 2.06, the Trustee's and the Registrar's duties shall be
limited to confirming that any such certifications and certificates delivered to
it are in the form of Exhibits B or C hereto. Neither the Trustee nor the
Registrar shall be responsible for confirming the truth or accuracy of any
representations or warranties made in any such certifications or certificates.
Section 2.07. REPLACEMENT NOTES.
(a) 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 in accordance with Section 2.02 with
respect to such Note, 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 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.
(b) Every replacement Note is an additional obligation
of the Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
Section 2.08. OUTSTANDING NOTES.
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note.
(b) If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding and interest on that Note ceases to accrue
unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a bona fide purchaser.
(c) 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.
(d) 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
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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 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication Order
in accordance with Section 2.02 with respect to such Notes, shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Company considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and, upon receipt of an
Authentication Order in accordance with Section 2.02 with respect to such Notes,
the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency of the Company designated for such purpose pursuant to Section
4.02 without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Company shall execute and, upon receipt of an
Authentication Order in accordance with Section 2.02 with respect to such Notes,
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Notes of authorized denominations.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee, upon direction by the Company and no one else, shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
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Section 2.12. 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, however, that no such
special record date shall be less than 5 days prior to the related payment date
for such defaulted interest. At least 10 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 2.13. CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided, however, 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 3.
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 45 days (unless a shorter period shall be agreed to by the Trustee in
writing) but not more than 75 days before a redemption date (but in any event
prior to the notice provided pursuant to Section 3.03 hereof), 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
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,
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by lot or in accordance with any other method the Trustee considers fair and
appropriate. Any such determination by the Trustee shall be conclusive. In the
event of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
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.
Section 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Sections 3.07 and 3.08 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 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 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.
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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 30 days (unless a shorter
period shall be agreed to by the Trustee in writing) but not more than 60 days
prior to the redemption date, an Officers' Certificate requesting that the
Trustee give such notice 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.
A notice of redemption shall be deemed to be given when
mailed, whether or not the Holder receives the notice. In any event, failure to
give such notice, or any defect in such notice, shall not affect the validity of
the proceedings for the redemption of the Notes held by Holders to whom such
notice was properly given.
Section 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest 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 an interest 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 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 receipt of an Authentication Order in accordance with
Section 2.02 with respect to such Notes, 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.
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Section 3.07. OPTIONAL REDEMPTION.
The Company may redeem the Notes, at its option, in whole or
in part, at any time or from time to time prior to their maturity at a
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest to the redemption date, plus a premium (the "Make-Whole
Premium"), if any. In no event will the redemption price be less than 100% of
the principal amount of the Notes plus accrued and unpaid interest, if any, to
the date of redemption.
The Make-Whole Premium with respect to any Note (or portion
thereof) to be redeemed shall be an amount equal to the excess, if any, of (1)
the sum of the present values, calculated as of the date of redemption, of (a)
each interest payment that, but for such redemption, would have been payable on
such Note (or portion thereof) on each payment date occurring after the
redemption date, and (b) the principal amount that, but for such redemption,
would have been payable at the final maturity of such Note (or portion thereof),
over (2) the principal amount of the Note (or portion thereof).
The present values of the interest and principal payments
referred to in clause (1) above will be determined in accordance with generally
accepted principles of financial analysis. These present values will be
calculated by discounting the amount of each payment of interest or principal
from the date that each such payment would have been payable, but for the
redemption, to the date of redemption at a discount rate equal to the treasury
yield described below (the "Treasury Yield") plus 50 basis points.
The Make-Whole Premium will be calculated by an independent
investment banking institution of national standing appointed by the Company;
provided, however, that if the Company fails to make such appointment at least
30 days prior to the date of redemption, or if the institution so appointed is
unwilling or unable to make the calculation, the calculation will be made by an
independent investment banking institution of national standing appointed by the
Trustee.
For purposes of determining the Make-Whole Premium, the
Treasury Yield shall be a rate of interest per annum equal to the weekly average
yield to maturity of United States Treasury Notes that have a constant maturity
that corresponds to the remaining term to maturity of the Notes, calculated to
the nearest 1/12th of a year. The Treasury Yield will be determined as of the
third Business Day immediately preceding the applicable date of redemption.
The weekly average yields of United States Treasury Notes will
be determined by reference to the most recent statistical release published by
the Federal Reserve Bank of New York and designated "H.15 (519) Selected
Interest Rates" or any successor release (the "H.15 Statistical Release"). If
the H.15 Statistical Release sets forth a weekly average yield for United States
Treasury Notes having a constant maturity that is the same as the remaining term
of the Notes, then the Treasury Yield will be equal to such weekly average
yield. In all other cases, the Treasury Yield will be calculated by
interpolation, on a straightline basis, between the weekly average yields on the
United
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States Treasury Notes that have a constant maturity closest to and greater than
the remaining term of the Notes and the United States Treasury notes that have a
constant maturity closest to and less than the remaining term of the Notes (in
each case as set forth in the H.15 Statistical Release). Any weekly average
yields so calculated by interpolation will be rounded to the nearest 1/100th of
1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly
average yields for United States Treasury Notes are not available in the H.15
Statistical Release or otherwise, then the Treasury Yield will be calculated by
interpolation of comparable rates selected by the independent investment banking
institution.
Section 3.08. REPURCHASE AT THE OPTION OF HOLDERs.
In the event that, pursuant to Section 4.15 or Section 4.16
hereof, the Company shall be required to commence an offer to all Holders to
purchase Notes (a "Repurchase Offer"), and they shall follow the procedures
specified below.
The Repurchase Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase at the purchase price (as
determined in accordance with Section 4.15 hereof), the principal amount of
Notes required to be purchased pursuant to Section 4.15 hereof, in the aggregate
(the "Offer Amount") or, if less than the Offer Amount has been tendered, all
Notes tendered in response to such Repurchase Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest 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 such Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to such Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of such Repurchase Offer, shall state:
(a) that the Repurchase Offer is being made pursuant to this
Section 3.08 and Section 4.15 or Section 4.16, as the case may be,
hereof, and the length of time the Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
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(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company default in making such payment,
any Note accepted for payment pursuant to the Repurchase Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
any Repurchase Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to
any Repurchase 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 before the Purchase 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 Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Notes purchased; and
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Notes shall be
selected for purchase pursuant to the terms of this Section 3.08, and
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 Purchase Date, the Company shall, to the
extent lawful, accept for payment, pursuant to the terms of this Section 3.08,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Repurchase Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.08. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five Business days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon receipt of an Authentication
Order in accordance with Section 2.02 with respect to such Note, shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the
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Company to the Holder thereof. The Company shall publicly announce through PR
Newswire, Dow Businesswire or any comparable wire service that distributes
releases to the broad financial and investor media, the results of the
Repurchase Offer on the Purchase Date.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act, and any other securities laws and regulations thereunder
to the extent that such laws or regulations are applicable in connection with
the repurchase of the Notes pursuant to the Repurchase Offer. To the extent that
the provisions of Rule 14e-1 under the Exchange Act or any securities laws or
regulations conflict with the provisions of this Section 3.08 or with Section
4.15 hereof, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under those
sections of this Indenture.
Any redemption pursuant to Article 3 hereof shall be subject
to the provisions of Section 2.01. Notes called for redemption become due and
payable on the date fixed for redemption. Interest will cease to accrue on the
Notes or portions thereof being redeemed on and after the redemption date,
unless the Company defaults in the payment of the redemption or repurchase
price.
ARTICLE 4.
COVENANTS
Section 4.01. PAYMENT OF NOTES.
(a) The Company shall pay or cause to be paid the principal
of, premium, if any, Liquidated Damages, if any, and interest on the Notes on
the dates and in the manner provided in the Notes. Principal, premium, if any,
Liquidated Damages, if any, and interest 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 then due. The Company shall pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
(b) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace period) at the same rate to the extent
lawful.
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Section 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in the Borough of Manhattan,
The City of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for payment, 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.
(b) 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.
(c) The Company hereby designates the Trustee's office at 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 as one such office or agency of the
Company in accordance with Section 2.03.
Section 4.03. REPORTS.
(a) Whether or not the Company is required to do so by the
rules and regulations of the Commission, so long as any Notes are outstanding,
the Company will file with the Commission all reports, statements and other
information as the Company would be required to file with the Commission by
Section 13(a) or 15(d) of the Exchange Act. The Company shall deliver to the
Trustee and furnish each Holder, without cost to such Holder, copies of such
reports and other information.
(b) For so long as any Notes remain outstanding, the Company
shall furnish to the Holders and to securities analysts and prospective
purchasers of Notes, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(c) After the Exchange Offer or the effectiveness of the Shelf
Registration Statement, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all of the information and
reports required to be delivered pursuant to clause (a) of this Section 4.03
with the Commission for public availability, unless the Commission shall not
accept such a filing, and from and after the date hereof will make this
information available to securities analysts and prospective
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investors upon request. In addition, for so long as any Notes remain
outstanding, the Company shall file with the Trustee and the Commission (unless
the Commission shall not accept such filing) the information required to be
delivered pursuant to clause (a) of this Section 4.03 within the time periods
specified in the Commission's rules and regulations and furnish that information
to Holders of the Notes, securities analysts and prospective investors upon
their request.
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 Restricted Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each of the Company and its
Restricted Subsidiaries 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, 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(a) above 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
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof 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, 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
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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.
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.
(a) 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 the Company's or any of
its Restricted Subsidiaries' Equity Interests, 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 the Company or any of its Restricted Subsidiaries' Equity
Interests in their capacity as such, except for dividends or
distributions that are payable in the Company's Equity
Interests (other than Disqualified Stock) or payable to the
Company or any of its Restricted Subsidiaries;
(ii) purchase, redeem or otherwise acquire or retire
for value, including, without limitation, in connection with
any merger or consolidation involving the Company, any of the
Company's Equity Interests;
(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 the Stated Maturity thereof; or
(iv) make any Restricted Investment;
all such payments and other actions set forth in these clauses (i) through (iv)
above being collectively referred to as "Restricted Payments."
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(b) Notwithstanding clause (a) of this Section 4.07, the
Company shall be permitted to engage in, and to cause or allow any of its
Restricted Subsidiaries to engage in, a Restricted Payment, so long as, at the
time of and after giving effect to such Restricted Payment:
(i) no Default or Event of Default has occurred and
is continuing or would occur as a consequence of such
Restricted Payment; and
(ii) 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 clause (a)
of Section 4.09; and
(iii) the aggregate amount of that Restricted
Payment and 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), (vi) and (vii) of Section 4.07(c), is less than
or equal to the sum, without duplication, of:
(A) 50% of the Company's Consolidated
Net Income for the period (taken as one accounting
period) from the beginning of the Company's fiscal
quarter commenced immediately prior to the Issue Date
to the end of the Company's most recently ended
fiscal quarter for which the Company has filed
financial statements with the Commission (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 received by the Company since the Issue Date
as a contribution to the Company's common equity
capital or from the issue or sale (other than to a
Subsidiary) of the Company's or any of its Restricted
Subsidiaries' Equity Interests (other than
Disqualified Stock) or from the issue or sale (other
than to a Subsidiary) of the Company's convertible or
exchangeable Disqualified Stock or the Company's
convertible or exchangeable debt securities that have
been converted into or exchanged for Equity Interests
(other than Disqualified Stock), plus
(C) to the extent that any Restricted
Investment that the Company or any of its Restricted
Subsidiaries makes after the Issue Date is sold for
cash or otherwise liquidated or repaid for cash, an
amount equal to the lesser of (1) the cash return of
capital with respect to any such Restricted
Investment (less the cost of
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disposition, if any) and (2) the initial amount of
such Restricted Investment, plus
(D) if the Company redesignates any
Unrestricted Subsidiary as a Restricted Subsidiary
after the Issue Date, an amount equal to the lesser
of (1) the net book value of the Company's Investment
in the Unrestricted Subsidiary at the time the
Unrestricted Subsidiary was designated as such and
(2) the fair market value of the Company's Investment
in the Unrestricted Subsidiary at the time of the
redesignation.
(c) Notwithstanding clauses (a) and (b) of this Section 4.07,
the Company shall be permitted to effect, and to cause or allow any of its
Restricted Subsidiaries to effect:
(i) the payment of any dividend within 60 days after the
date of declaration of the dividend, if at the date of
declaration the dividend payment would have complied with the
provisions of this Indenture;
(ii) the redemption, repurchase, retirement, defeasance
or other acquisition of any of (a) the Company's Indebtedness
or any Indebtedness of any Guarantor that is subordinated to
the Notes or the Subsidiary Guarantees, or (b) the Company's
Equity Interests or any Equity Interests of any of the
Company's Restricted Subsidiaries, in either case in exchange
for, or out of the net cash proceeds of the substantially
concurrent sale (other than to one of the Company's
Subsidiaries) of, the Company's Equity Interests (other than
Disqualified Stock); provided, however, that the amount of any
such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other
acquisition will be excluded from clause (b)(iii)(B) of this
Section 4.7;
(iii) the defeasance, redemption, repurchase or other
acquisition of the Company's Indebtedness or Indebtedness of
any Guarantor that is subordinated to the Notes or the
Subsidiary Guarantees with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by one of the Company's
Restricted Subsidiaries to the holders of that Restricted
Subsidiary's common Equity Interests on a pro rata basis, so
long as the Company or one of its Restricted Subsidiaries
receives at least a pro rata share (and in like form) of the
dividend or distribution in accordance with its common Equity
Interests;
(v) the repurchase, redemption or other acquisition or
retirement for value of any of the Company's or any of its
Restricted Subsidiaries' Equity Interests held by any member
of the Company's or any of its
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Restricted Subsidiaries' management pursuant to any management
equity subscription agreement, stock option agreement or
similar agreement, provided, however, that the aggregate price
paid for all such repurchased, redeemed, acquired or retired
Equity Interests may not exceed $1.0 million in any
twelve-month period;
(vi) in connection with an acquisition by the Company or
any of its Restricted Subsidiaries, the return to the Company
or such Restricted Subsidiary of Equity Interests of the
Company or such Restricted Subsidiary constituting a portion
of the purchase consideration in settlement of indemnification
claims;
(vii) the purchase by the Company of fractional shares
arising out of stock dividends, splits or combinations or
business combinations;
(viii) the acquisition in open-market purchases of the
Company's common Equity Interests for matching contributions
to the Company's employee stock purchase and deferred
compensation plans in the ordinary course of business and
consistent with past practices; or
(ix) other Restricted Payments in an aggregate amount
since the Issue Date not to exceed $10.0 million,
provided, however, that, with respect to clauses (ii), (iii), (v), (viii) and
(ix) above, no Default or Event of Default shall have occurred and be continuing
immediately after such transaction.
(d) 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 a
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 Section 4.07 will be determined by the Company's 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 shall 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 Section
4.07 were computed, together with a copy of any fairness opinion or appraisal
required by the indenture.
Section 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any
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Restricted Subsidiary of the Company to (i)(A) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary to the Company or any other Restricted Subsidiary, or with
respect to any other interest or participation in, or measured by, the profits
of such Restricted Subsidiary, or (B) pay any Indebtedness owed to the Company
or any other Restricted Subsidiary, (ii) make loans or advances to the Company
or any other Restricted Subsidiary or (iii) transfer any of its properties or
assets to the Company or any other Restricted Subsidiary.
(b) The provisions of Section 4.08(a) above shall not apply to
encumbrances or restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness, or any
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 the amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacement or refinancings of any of the foregoing 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 date hereof;
(ii) this Indenture, the Notes and the Subsidiary
Guarantees, or any other indenture governing debt securities
that are no more restrictive, taken as a whole, with respect
to dividend and other payment restrictions than those
contained in this Indenture and the Notes;
(iii) applicable law or any applicable rule, regulation
or order; (iv)any instrument governing Indebtedness or Capital
Stock of a person acquired by the Company or any of its
Restricted 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;
(v) customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with
past practices;
(vi) purchase money obligations for property acquired in
the ordinary course of business that impose restrictions on
that property of the nature described in clause (a)(iii) of
this Section 4.08;
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(vii) any agreement (A) for the sale or other
disposition of all of the Equity Interests in or all or
substantially all of the assets of one of the Company's
Restricted Subsidiaries that restricts distributions or asset
transfers by that Restricted Subsidiary pending that sale or
other disposition or (B) for the sale of a particular asset or
line of business of a Restricted Subsidiary that imposes
restrictions on the property subject to an agreement of the
nature described in clause (a)(iii) of this Section 4.08; or
(viii) Permitted Refinancing Indebtedness, provided,
however, that any restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are not
materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced and that such Permitted Refinancing Indebtedness
was permitted to be incurred under Section 4.09 hereof;
(ix) Liens securing Indebtedness otherwise permitted
to be incurred under the provisions of Section 4.11 that limit
the right of the debtor to dispose of the assets subject to
such Liens; and
(x) provisions with respect to the disposition of
specific assets or property in asset sale agreements entered
into in the ordinary course of business.
Section 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, 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 (1) the Company and any Guarantor may incur Indebtedness
(including Acquired Debt) and (b) the Company may issue Disqualified Stock, if,
in each case, the Fixed Charged Coverage Ratio for the Company's most recently
ended fiscal four full fiscal quarters for which the Company has filed financial
statements with the Commission preceding the date on which such Indebtedness is
incurred or such Disqualified Stock is issued, as the case may be, would have
been at least 2.25 to 1.0, 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 the Disqualified Stock had been issued, as the
case may be, at the beginning of such four-quarter period.
(b) In addition to the foregoing, the Company and any
Restricted Subsidiary (except as specified below) may incur the following types
of Indebtedness:
(i) the incurrence by the Company or any Guarantor of
additional Indebtedness and letters of credit under one or
more Credit Facilities and guarantees thereof by the
Guarantors; provided, however, that the
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aggregate principal amount of all Indebtedness incurred by the
Company and the Guarantors pursuant to 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 Restricted Subsidiaries thereunder) outstanding at any one
time does not exceed $125.0 million;
(ii) the incurrence by the Company and the Restricted
Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness
represented by the Notes and the incurrence by the Guarantors
of the Subsidiary Guarantees of those Notes;
(iv) the incurrence by the Company, or by any Restricted
Subsidiary that is a Guarantor, 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 Company's business or the business of that
Restricted Subsidiary, in an aggregate principal amount not to
exceed $10.0 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 incurred under clause (a)
of this Section 4.09 or clauses (ii), (iii) or (iv) of this
Section 4.09(b); provided, however, that no Restricted
Subsidiary that is not a Guarantor may refund, refinance or
replace Indebtedness previously incurred by the Company or by
any Restricted Subsidiary that is a Guarantor;
(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, however, that:
(A) if the Company or a Guarantor is
the obligor on such intercompany Indebtedness, such
intercompany Indebtedness must be expressly
subordinated to the prior payment in full in cash of
all Obligations with respect to, in the case of the
Company, the Notes, and, in the case of a Guarantor,
the Subsidiary Guarantees; and
(B) (1) 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 that is a
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Guarantor and (2) any sale or other transfer of any
such Indebtedness to a person that is not either the
Company or a Restricted Subsidiary that is a
Guarantor shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the
Company or such 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;
(viii) the guarantee by the Company or any of the
Guarantors of Indebtedness of the Company or of any of the
Guarantors that was permitted to be incurred by another
provision of this Section 4.09; and
(ix) the incurrence by the Company or a Restricted
Subsidiary 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 (ix), not to
exceed $35.0 million.
(c) The maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness, due solely
to fluctuations in the exchange rates of currencies.
(d) For purposes of determining compliance with this covenant,
in the event that an item of proposed Indebtedness, including Acquired Debt,
meets the criteria of more than one of the categories of Permitted Debt
described in clauses (b)(i) through (ix) of this Section 4.09 as of the date of
incurrence thereof, or is entitled to be incurred pursuant to clause (a) of this
Section 4.09 as of the date of incurrence thereof or pursuant to any combination
of the foregoing as of the date of incurrence thereof, the Company shall, in its
sole discretion, classify (or later classify or reclassify) in whole or in part,
such item of Indebtedness in any manner that complies with this Section 4.09.
Accrual of interest or dividends, the accretion of accreted value or liquidation
preference and the payment of interest or dividends in the form of additional
Indebtedness or Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09.
Section 4.10. TRANSACTIONS WITH AFFILIATES.
(a) 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 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:
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(i) the 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 $1.0 million, a resolution of the Company's
Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate
Transaction complies with this Section 4.10 and that
such Affiliate Transaction has been approved by a
majority of the disinterested members of the
Company's Board of Directors; and
(B) with respect to any Affiliate
Transaction or series of related Affiliate
Transactions involving aggregate consideration in
excess of $5.0 million, an opinion as to the fairness
to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting,
appraisal or investment banking firm of national
standing.
(b) The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of clause (a)
of this Section 4.10:
(i) any employment agreement entered into by the Company
or a Restricted Subsidiary in the ordinary course of business
and consistent with the past practice of the Company or such
Restricted Subsidiary;
(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 such person;
(iv) payment of reasonable directors fees and reasonable
indemnitees 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) transactions with Xxxxxxxxxxx (A) to repay $100.0
million of outstanding Indebtedness, plus accrued and unpaid
interest, to Xxxxxxxxxxx with the proceeds of the Offering,
(B) pursuant to agreements as in effect on the Issue Date, and
(C) in commercial transactions in the
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ordinary course of business on terms no less favorable to the
Company or the relevant Restricted Subsidiary than the Company
could obtain in an arm's length transaction with an unrelated
person;
(vii) Restricted Payments or Permitted Investments that
are permitted by Section 4.07
Section 4.11. LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien securing Indebtedness, Attributable Debt or trade
payables, except Permitted Liens, upon any of the Company's, or a Restricted
Subsidiary's, property or assets, now owned or acquired after the Issue Date,
unless all payments due under this Indenture and the Notes, or the Subsidiary
Guarantees, as applicable, are secured on an equal and ratable basis with (or if
the obligations being secured rank junior in right of payment to the Notes, on a
senior basis to) the obligations so secured until such time as such obligations
are no longer secured by a Lien.
Section 4.12. ADDITIONAL SUBSIDIARY GUARANTEES.
If the Company or any Restricted Subsidiary acquires or
creates another Domestic Subsidiary after the date of this Indenture, then that
newly acquired or created Domestic Subsidiary will become a Guarantor and
execute a supplemental indenture and deliver an Opinion of Counsel satisfactory
to the Trustee within ten Business Days of the date on which it was acquired or
created; provided, however, that the foregoing shall not apply to Subsidiaries
that have properly been designated as Unrestricted Subsidiaries in accordance
with this Indenture for so long as they continue to constitute Unrestricted
Subsidiaries; provided further, however, that if a Subsidiary that is not a
Guarantor guarantees any of the Company's or a Guarantor's Indebtedness, that
Subsidiary will be required to provide the Company with a guarantee that ranks
pari passu with (or, if that Indebtedness is subordinated Indebtedness, prior
to) that Indebtedness.
Section 4.13. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
(a) The Board of Directors of the Company may designate any
Restricted Subsidiary (or any person that upon its acquisition otherwise would
become a 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 the 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 Section 4.07(a) or Permitted Investments, 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 of the Company
may
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redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the
redesignation would not cause a Default.
(b) Any designation of any of the Company's Subsidiaries as an
Unrestricted Subsidiary pursuant to this Section 4.13 shall 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 by
Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet
the preceding requirements as an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by one of the
Company's Restricted Subsidiaries as of such date and, if such Indebtedness is
not permitted to be incurred as of such date under Section 4.09, the Company
shall be in default of such Section 4.09. The Company's Board of Directors may
at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that such designation will be deemed to be an incurrence of
Indebtedness by one of the Company's Restricted Subsidiaries 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 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 or Event of Default would be
in existence following such designation.
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 Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Restricted
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 Restricted Subsidiaries, if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Restricted 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. ASSET SALES.
(a) The Company will not, and will 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 the Asset
Sale at least equal to the fair market value of the assets or
Equity Interests issued or sold or otherwise disposed of;
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(ii) in the case of Asset Sales for consideration
exceeding $5.0 million, the fair market value is determined by
the Company's Board of Directors and evidenced by a resolution
of the Company's Board of Directors set forth in an officer's
certificate delivered to the Trustee; and
(iii) at least 75% of the consideration received in the
Asset Sale by the Company or such Subsidiary is in the form of
cash. For purposes of this provision, each of the following
will be deemed to be cash:
(A) any secured Indebtedness of the
Company or a Guarantor and any Indebtedness of a
Restricted Subsidiary that is not a Guarantor 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 any Restricted
Subsidiary from such transferee that the Company or
such Restricted Subsidiary contemporaneously, subject
to ordinary settlement periods, converts into cash,
to the extent of the cash received, in that
conversion.
(b) Within 365 days after the receipt of any Net Proceeds from
an Asset Sale, the Company may apply those Net Proceeds at its option:
(i) to permanently repay any secured Indebtedness of the
Company or a Guarantor, or any Indebtedness of a Restricted
Subsidiary that is not a Guarantor and, if any Indebtedness
repaid under this clause (i) is revolving credit Indebtedness,
to correspondingly reduce commitments with respect thereto;
provided, however, that for purposes of this clause (i) only,
Indebtedness shall include accrued but unpaid interest
thereon;
(ii) to acquire 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; or
(iv) to acquire other long-term assets that are used or
useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds." When the
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aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
make a pro rata offer to purchase (an "Asset Sale Offer") to all Holders of
Notes and all holders of other Indebtedness 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 and such other pari passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset
Sale Offer will be equal to 100% of principal amount plus accrued and unpaid
interest 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 shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis (based upon the aggregate
principal amount of the Notes and such other pari passu Indebtedness tendered).
Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be
deemed to have been reset at zero.
(d) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with repurchases of Notes pursuant to an Asset Sale Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall 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 of that conflict.
Section 4.16. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control Triggering
Event, each Holder shall have the right to require the Company to make an offer
(a "Change of Control Offer") to each Holder to repurchase all or any part,
equal to $1,000 or an integral multiple of $1,000, of the Holder's Notes at an
offer price in cash equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest and Liquidated Damages, if any, on
Notes repurchased to the date fixed for repurchase (the "Change of Control
Payment").
(b) Within 15 Business Days following a Change of Control
Triggering Event, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control Triggering
Event and offering to repurchase the Notes on the date specified in the notice,
which date shall be no earlier than 30 days and no later than 60 days from the
date the notice is mailed (the "Change of Control Payment Date") pursuant to the
procedures set forth in Section 3.08 and described in the notice. The Company
shall comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and
regulations are applicable to the repurchase of the Notes as a result of a
Change of Control Triggering Event. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.16, the Company
shall comply
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with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this Section 4.16 by virtue of such
conflict.
(c) On the Change of Control Payment Date, the Company
shall, to the extent lawful, (i) accept for payment all Notes or portions of
Notes properly tendered under the Change of Control Offer; (ii) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Notes or portions of the Notes so tendered; and (iii) 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 of the
Notes being purchased by the Company.
(d) The Paying Agent shall deliver promptly to each
Holder of Notes so tendered the Change of Control Payment for such Notes, and,
upon receipt of an Authentication Order in accordance with Section 2.02 with
respect to such Notes, the Trustee shall promptly authenticate and deliver, 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, provided,
however, that each new Note shall be in a principal amount of $1,000 or an
integral multiple of $1,000.
(e) The Change of Control provisions described in this
Section 4.16 shall be applicable whether or not any other provisions of this
Indenture are applicable.
(f) The Company shall not be required to make a Change
of Control Offer following a Change of Control Triggering Event 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 4.16 and purchases
all Notes properly tendered and not withdrawn under the Change of Control Offer.
Section 4.17. LIMITATIONS ON LINE OF BUSINESS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than a Permitted Business, except to
such extent as is not material to the Company and its Restricted Subsidiaries,
taken as a whole.
Section 4.18. 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 and its Restricted Subsidiaries may enter into a sale
and leaseback transaction if
(a) the Company or the relevant Restricted Subsidiary
could have (i) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction under the Fixed Charge Coverage
Ratio test in Section 4.09(a) and (ii) incurred a Lien to secure such
Indebtedness pursuant to Section 4.11; provided, however, that clause (i) of
this clause (a) shall be suspended during any period in which the Company and
its Restricted Subsidiaries are not subject to the Suspended Covenants;
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(b) the gross cash proceeds of the sale and leaseback
transaction are at least equal to the fair market value, as determined in good
faith by the Company and set forth in an Officers' Certificate delivered to the
Trustee, of the property that is the subject of the sale and leaseback
transaction; provided, however, that in the case of any sale and leaseback
transaction for consideration exceeding $5.0 million, the fair market value
shall be determined by the Company's Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee; and
(c) the transfer of assets in the sale and leaseback
transaction is permitted by, and the Company or the relevant Restricted
Subsidiary applies the proceeds of the transaction in compliance with, Section
4.11 hereof; provided, however, that, in the event that the Company or any of
its Restricted Subsidiaries consummates a sale and leaseback transaction during
a period in which the Company is not subject to the Suspended Covenants, within
twelve months of that sale and leaseback transaction, the Company shall apply
the Net Cash Proceeds thereof to permanently repay secured Indebtedness of the
Company or a Guarantor, or any Indebtedness of any of the Company's Restricted
Subsidiaries that is not a Guarantor, and if any Indebtedness repaid under this
clause (c) is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto.
Section 4.19. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Restricted Subsidiaries
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder 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
or is paid to all Holders that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
Section 4.20. SUSPENSION OF COVENANTS.
(a) During any period of time that the Notes have an
Investment Grade Rating from either of the Rating Agencies and no Default has
occurred and is continuing, the Company and its Restricted Subsidiaries shall
not be subject to Sections 4.07, 4.08, 4.09, 4.10, 4.15, 4.17, 4.18(a)(i) and
5.01(a)(iv) (collectively, the "Suspended Covenants"), provided, however, that
if the Company and its Restricted Subsidiaries are not subject to the Suspended
Covenants for any period of time as a result of this Section 4.20 and,
subsequently, either of the Rating Agencies withdraws its ratings or downgrades
the ratings assigned to the Notes below the Investment Grade Ratings so that the
Notes do not have an Investment Grade Rating from either Rating Agency, or a
Default (other than with respect to the Suspended Covenants) occurs and is
continuing, the Company and its Restricted Subsidiaries will thereafter again be
subject to the Suspended Covenants, subject to the terms, conditions and
obligations set forth in this Indenture (each such date of reinstatement being
the "Reinstatement Date"). Compliance with the Suspended Covenants with respect
to Restricted Payments made after the
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Reinstatement Date will be calculated in accordance with Section 4.07 as though
Section 4.07 had been in effect during the entire period of time from the Issue
Date.
ARTICLE 5.
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
(a) The Company shall not consolidate or merge with or into
another person (whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, 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 of the Company's
obligations under the Notes and this Indenture pursuant to
agreements reasonably satisfactory to the Trustee;
(iii) immediately before and after giving effect to such
transaction, no Default or Event of Default exists;
(iv) 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 will, on the date of 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, be
permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in
Section 4.09(a); provided, however, that the Company delivers
to the Trustee an Officers' Certificate, attaching the
arithmetic computations to demonstrate compliance with this
clause (a)(iv), and an Opinion of Counsel, in each case
stating that such consolidation, merger or transfer complies
with this provision and that all conditions precedent provided
for herein relating to such transaction have been complied
with; and provided further, that this clause (a)(iv) shall not
apply (A) pursuant to Section 4.20, during any period in which
the
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Company and its Restricted Subsidiaries are not subject to the
Suspended Covenants, and (B) if, in the good faith
determination of the Board of Directors, the principal purpose
of the transaction is to change the Company's state of
incorporation and the transaction does not have as one of its
purposes the evasion of the foregoing limitations.
(b) The Company shall not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other person.
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 successor
corporation 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 the successor corporation 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 successor person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes or any other
amounts owing hereunder or under the Notes in the case of a sale or lease of all
or substantially all of the Company's assets that meets the requirements of
Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT.
Each of the following events constitutes an "Event of
Default":
(a) default in the payment when due of principal of or
premium, if any, on any Note when the same becomes due and payable at maturity,
upon acceleration, upon redemption or otherwise;
(b) default in the payment when due of interest on, or
Liquidated Damages with respect to, any Note, and such default continues for a
period of 30 days;
(c) default in the performance or breach of the provisions by
the Company or any of its Restricted Subsidiaries of 4.07, 4.09 or Section 5.01
hereof;
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(d) default in the performance by the Company or any of its
Restricted Subsidiaries of Sections 4.15 or 4.16 hereof, and such default
continues for a period of 30 days after written notice;
(e) default in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or under the Notes (other
than a default specified in clause (a), (b), (c) or (d) above) by the Company or
any of its Restricted Subsidiaries and such default or breach continues for a
period of 60 days after written notice by the Trustee to the Company or by the
Holders of 25% or more in aggregate principal amount of the Notes to the Company
and the Trustee;
(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 date hereof, 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 express 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 $10.0 million or more;
(g) default by the Company or any of its Subsidiaries in the
payment of final judgments aggregating in excess of $10.0 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 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;
(i) a court having jurisdiction in the premises enters a
decree or order for
(i) relief in respect of the Company or any of its
Restricted Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect,
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(ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Company or any of its Restricted Subsidiaries or for all or
substantially all of the property and assets of the Company or
any of its Restricted Subsidiaries, or
(iii) the winding up or liquidation of the affairs of the
Company or any of its Restricted Subsidiaries and,
in each case, such decree or order shall remain unstayed and
in effect for a period of 30 consecutive days; or
(j) the Company or any of its Restricted Subsidiaries:
(i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or consents to the entry of an order for relief in
an involuntary case under any such law,
(ii) consents to the appointment of or taking possession
by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or such
Restricted Subsidiary or for all or substantially all of the
property and assets of the Company or such Restricted
Subsidiary, or
(iii) effects any general assignment for the benefit of
creditors.
Section 6.02. ACCELERATION.
(a) If any Event of Default (other than an Event of Default
specified in clause (i) or (j) of Section 6.01 hereof), occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes, by written notice to the Company (and, if such
notice is given by such Holders, to the Trustee), may, and the Trustee at the
request of such Holders shall, declare the principal of, premium, if any, and
accrued interest on the Notes to be due and payable immediately. Upon such
declaration of acceleration, such principal of, premium, if any, and accrued and
unpaid interest and Liquidated Damages, if any, shall be immediately due and
payable.
(b) 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, any Restricted Subsidiary that is a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, the principal of, premium, if any, and accrued and unpaid interest
and Liquidated Damages, if any, on the Notes then outstanding shall be due and
payable immediately without further action or notice on the part of the Trustee
or any Holder.
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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, 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 to enforce its rights
and to pursue its remedies under the Notes and this Indenture even if the
Trustee 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.
At any time after declaration of acceleration, but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee, may waive
all past defaults, except a Default in the payment of principal of premium, if
any, or interest on any Note as specified in clause (a) or (b) of Section 6.01
or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected, and rescind and annul a declaration of acceleration and its
consequences if:
(a) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, and interest on the Notes that
have become due solely by such declaration of acceleration, have been
cured or waived; and
(b) such rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
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 Event of Default or impair any right consequent
thereto.
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 enforcing any rights and 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 involve the Trustee in personal liability or
that the Trustee determines in good faith may be unduly prejudicial to the
rights of other Holders of Notes not joining in the giving of such direction and
may
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take any other action it deems proper that is not inconsistent with any such
direction received for Holders of Notes.
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 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
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
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 OF NOTES 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)
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 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
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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, and to secure
the payment of same, the Trustee is hereby granted an interest security in, 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 Sections 6.09 and 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee, its
agents or attorneys and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, 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 and Liquidated Damages, if
any and interest, respectively; and
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Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes 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 disbursements 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.
Section 6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then, and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders shall
continue as though no such proceeding had been instituted, except that the
rights of the Trustee to receive compensation, reimbursement of any of its
expenses or indemnification from the Holders in connection with such proceeding
in accordance with the terms of the Indenture or any separate agreement or
understanding between the Trustees and the Holders shall not be affected by this
Section 6.12.
Section 6.13. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or wrongfully taken Notes in Section
2.07, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 6.14. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 6 or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
ARTICLE 7.
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 of which the Trustee has
actual knowledge 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 of
which the Trustee has actual knowledge:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee
undertakes to perform, and 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 to
determine whether or not they conform to the requirements of
this Indenture.
(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;
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(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), (c), (e) and (f) of this Section and Section 7.02.
(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 the Trustee 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) In connection with its rights and duties under this
Indenture, the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, Note, or other
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
the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written 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 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 or takes or omits to take
in accordance with the written direction
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of the Holders of a majority in principal amount of the outstanding Notes
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under 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.
(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 security or indemnity reasonably 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.
(h) Except with respect to Section 4.01, the Trustee xxxx have
no duty to inquire as to the performance of the Company's covenants set forth in
Article 4. The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Sections
6.01(a), 6.01(b) and 4.01 or (ii) any Default or Event of Default of which the
Trustee shall have received written notification in the manner set forth in this
Indenture or a Responsible Officer of the Trustee shall have obtained actual
knowledge of the Default or Event of Default.
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 Commission
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
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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.
Section 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of Notes 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, 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 May 15, 2001,
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 ss. 313(a) (but if no event described in TIA ss. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA ss.
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as
shall be agreed upon in writing by the Company and the Trustee. 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, defend and hold harmless the
Trustee and its shareholders, incorporators, directors, officers, employees,
representatives and agents (each an "Indemnitee") against any and all losses,
liabilities or expenses (including reasonable fees and disbursements of counsel)
incurred by any of them arising out of or
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in connection with the acceptance or administration of the Trustee's duties
under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and defending any of
themselves 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 the Trustee's powers or duties hereunder, except to the extent any such
loss, liability or expense or a portion thereof may be attributable to the
Trustee's negligence or bad faith. An Indemnitee shall notify the Company
promptly of any claim for which that Indemnitee may seek indemnity. Failure by
the Indemnitee to so notify the Company shall not relieve the Company of its
obligations hereunder. Subject to receipt of the consent of the party to be
defended, which consent shall not be unreasonable withheld or delayed, the
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Indemnitees 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 or delayed. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by an Indemnitee through that
Indemnitee's own willful misconduct, negligence or bad faith.
The obligations of the Company under this Section 7.07 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien and is hereby granted a security interest prior in
right of payment 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(g) or (h) hereof occurs, the expenses
and the compensation for the services (including the fees, disbursements 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 ss.
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 Notes 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:
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(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 custodian 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 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes 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 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. Subject to the Lien provided for in Section
7.07 hereof, the retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee; provided, however, that all sums owing
to the retiring Trustee hereunder shall have been paid and the property so
transferred shall remain subject to the Lien provided for in Section 7.07.
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 or national banking corporation, the successor corporation or
national banking corporation without any further act shall be the successor
Trustee.
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Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation 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 (or the bank holding company of which
it is an Affiliate has) a combined capital and surplus of at least $50 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 ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b) provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any indenture or indentures under which other securities
or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusions set forth in TIA Section
310(b)(1) are met.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
NOTE GUARANTEES
Section 8.01. SUBSIDIARY GUARANTEES.
(a) Subject to this Article 8, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees 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 Company hereunder or thereunder, that: (i)
the principal of premium, 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 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 (ii) 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 pursuant to Section 6.02 hereof 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 is a guarantee of
payment and not a guarantee of collection.
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(b) Each Guarantor hereby agrees that its obligations with
regard to such Subsidiary Guarantee shall be joint and several, unconditional,
irrespective of the validity or enforceability of the Notes or the obligations
of the Company under this Indenture, the absence of any action to enforce the
same, the recovery of any judgment against the Company or any other obligor with
respect to this Indenture, the Notes or the obligations of the Company under
this Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (i) any right to require any of the Trustee, the Holders or the
Company (each a "Benefited Party"), as a condition of payment or performance by
such Guarantor, to (A) proceed against the Company, any other guarantor
(including any other Guarantor) of the obligations under the Subsidiary
Guarantees or any other person, (B) proceed against or exhaust any security held
from the Company, any such other guarantor or any other person, (C) proceed
against or have resort to any balance of any deposit account or credit on the
books of any Benefited Party in favor of the Company or any other person, or (D)
pursue any other remedy in the power of any Benefited Party whatsoever; (ii) any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Company including any defense based on or arising out of
the lack of validity or the unenforceability of the obligations under the
Subsidiary Guarantees or any agreement or instrument relating thereto or by
reason of the cessation of the liability of the Company from any cause other
than payment in full of the obligations under the Subsidiary Guarantees; (iii)
any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal; (iv) any defense based upon any
Benefited Party's errors or omissions in the administration of the obligations
under the Subsidiary Guarantees, except behavior which amounts to bad faith;
(v)(A) any principles or provisions of law, statutory or otherwise, which are or
might be in conflict with the terms of the Subsidiary Guarantees and any legal
or equitable discharge of such Guarantor's obligations hereunder, (B) the
benefit of any statute of limitations affecting such Guarantor's liability
hereunder or the enforcement hereof, (C) any rights to set-offs, recoupments and
counterclaims and (D) promptness, diligence and any requirement that any
Benefited Party protect, secure, perfect or insure any security interest or lien
or any property subject thereto; (vi) notices, demands, presentations, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance of the Subsidiary Guarantees, notices of default under the
Notes or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the obligations under the Subsidiary Guarantees or
any agreement related thereto, and notices of any extension of credit to the
Company and any right to consent to any thereof; (vii) to the extent permitted
under applicable law, the benefits of any "One Action" rule and (viii) any
defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms of the Subsidiary Guarantees. Except as set forth in Section 8.6, each
Guarantor hereby
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covenants that its Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in its Guarantee and this
Indenture.
(c) 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 either to the Trustee or such Holder, any
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.
(d) 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, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 6.02
hereof for the purposes of any Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby and (ii) in the event of any declaration of
acceleration of such obligations as provided in Section 6.02 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of any such 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 the applicable Subsidiary Guarantee.
Section 8.02. ADDITIONAL GUARANTEES.
If any Restricted Subsidiary becomes obligated pursuant to
Section 4.10 hereof, then the Company shall cause any such Restricted Subsidiary
to, within five Business Days of the date on which any such Restricted
Subsidiary became so obligated, (a) execute and deliver to the Trustee a
Supplemental Indenture in form reasonably satisfactory to the Trustee pursuant
to which such Restricted Subsidiary shall unconditionally guarantee, on a senior
unsecured basis, all of the Company's obligations under the Notes and this
Indenture on the terms set forth herein and therein and (b) deliver to the
Trustee an Opinion of Counsel that, subject to customary assumptions and
exclusions, such supplemental indenture has been duly executed and delivered by
such Restricted Subsidiary. Any Restricted Subsidiary that becomes a Guarantor
shall remain a Guarantor unless (i) designated an Unrestricted Subsidiary by the
Company in accordance with this Indenture; (ii) is otherwise released from its
obligations as a Guarantor pursuant to Section 8.05 hereof; or (iii) the
circumstances giving rise to the obligation to provide a guarantee under Section
4.10 no longer exist.
Section 8.03. LIMITATION 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
for purposes of Bankruptcy
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Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law to 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
under this Article 8 shall be limited to the 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 8, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
Section 8.04. MERGER AND CONSOLIDATION OF GUARANTORS.
Except as otherwise provided in Section 8.05 hereof, no
Guarantor may 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 such transaction, no
Default or Event of Default exists; and
(b) either (i) the person acquiring the property in any such
sale or disposition or the person formed by or surviving any such
consolidation or merger, assumes all the obligations of that Guarantor
under this Indenture and the Subsidiary Guarantee of such Guarantor
pursuant to a supplemental indenture reasonably satisfactory to the
Trustee, or (ii) in the case of a sale or other disposition of all or
substantially all of the assets of such Guarantor's assets, the Net
Proceeds of such sale of other disposition are applied in accordance
with Section 4.15.
In case of any such sale or other disposition, consolidation,
merger, sale or conveyance and upon the assumption by the successor person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Notes 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. Such successor person thereupon may cause to be
signed any or all of the Subsidiary Guarantees to be endorsed upon all of the
Notes issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. 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.
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Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) of this Section 8.04, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into an Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to an Company or another Guarantor.
Section 8.05. RELEASE.
(a) In the event of (i) a sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all to the Capital
Stock of any Guarantor, in each case to a person that is not (either before or
after giving effect to such transactions) a Subsidiary of the Company, so long
as the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.15 hereof, or (ii) a designation by the Company of any Restricted
Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with
Section 4.13, such Guarantor or, in the case of a sale or other disposition of
all or substantially all of the assets of such Guarantor, the corporation
acquiring such property, will be released and relieved of any obligations under
its Subsidiary Guarantee.
(b) Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such sale or
other disposition was made by the Company in accordance with the provisions of
this Indenture, including without limitation Section 4.07 hereof, or such
designation was made in accordance with Section 4.13 hereof, as the case may be,
the Trustee shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under its Subsidiary
Guarantee.
(c) 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 8.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company
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;
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(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 by a successor to the Company 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;
or
(e) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
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 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 affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES.
(a) Except as provided below in this Section 9.02, this
Indenture and the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes including
Additional Notes, if any, then outstanding voting as a single class (including
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, 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, or interest on the Notes,
except a payment default resulting solely 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 principal amount of
the then outstanding Notes, including Additional Notes, if any, voting as a
single class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, 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):
(i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
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(ii) reduce the principal of or change the fixed maturity
of any Note or alter the provisions with respect to the
redemption of the Notes, other than Sections 4.15 and 4.16;
(iii) reduce the rate of or change the time for payment
of interest on any Note;
(iv) waive a Default or Event of Default in the payment
of principal of, or interest or premium, 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 Notes and a waiver of the payment default that resulted
from such acceleration);
(v) make any Note payable in money other than that stated
in the Notes;
(vi) make any change in the provisions of this Indenture
relating to waivers of past Defaults, including Section 6.04,
or the rights of holders of notes to receive payments of
principal of, or interest or premium, if any, on the Notes;
(vii) waive a redemption payment with respect to any
Note, other than a payment required under Section 4.15 or
4.16;
(viii) 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
(ix) make any change in the preceding amendment and
waiver provisions.
(b) 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 of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture
directly 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.
(c) It shall not be necessary for the consent of the Holders
of Notes 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.
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(d) After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders of Notes
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, including
Additional Notes, if any, then outstanding voting as a single class may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Notes.
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an 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, in accordance with Section 2.02 with respect to
those Notes, 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 Nine 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 Directors 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, in addition to
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the documents required by Section 10.04 hereof, 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 10.
MISCELLANEOUS
Section 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties shall
control.
Section 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next-day delivery, to the
others' address.
If to the Company:
Grant Prideco, Inc.
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
With a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Still
If to the Trustee:
United States Trust Company of New York
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Corporate Trust Administration
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 deemed to have been duly given: at the time delivered by hand,
if personally delivered;
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five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery 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 ss. 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.
Except for a notice to the Trustee, which is deemed given only
when received, and except as otherwise provided in this Indenture, if a notice
or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
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.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 10.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 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 ss. 312(c).
Section 10.04. 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 10.05 hereof) stating that, in the
opinion of the signers, all conditions precedent
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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 10.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied.
Section 10.05. 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 ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(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 10.06. 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 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No recourse for the payment of the principal of, premium, if
any, or interest or Liquidated Damages, if any, on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company or of any Guarantor
contained in this Indenture or in any of the Notes, or because of the creation
of any Indebtedness represented thereby, shall be had against any incorporator
or past, present or future director, officer, employee, controlling person or
stockholder of the Company or of any Guarantor. 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. Such waiver may not be effective to
waive
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liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
Section 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 10.09. 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 10.10. 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 10.11. 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 10.12. 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 10.13. 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.
[Signatures on following page]
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SIGNATURES
Dated as of December 4, 0000
XXXXXX XXXXXX TRUST COMPANY OF NEW YORK
as Trustee
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx
Vice President
GRANT PRIDECO, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
GP EXPATRIATE SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
GRANT PRIDECO HOLDING, LLC
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
98
GRANT PRIDECO, LP
By: Grant Prideco Holding, LLC
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
GRANT PRIDECO USA, LLC
By: /s/ Authorized Signatory
--------------------------------------
Name:
Title:
STAR OPERATING COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
TA INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
TEXAS ARAI, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
2
99
TUBE-ALLOY CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
TUBE-ALLOY CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
XL SYSTEMS INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
XL SYSTEMS, L.P.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Grant Prideco Holding, LLC
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, President and
Chief Executive Officer
3
100
EXHIBIT A
(Face of Note)
9 5/8% SENIOR NOTES DUE 2007
CUSIP 38821G AA 9
NO. 144A-1 UP TO $200,000,000
GRANT PRIDECO, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum set forth
in the Schedule of Increases and Decreases attached to this Security on December
1, 2007.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2001.
Record Dates: May 15 and November 15.
GRANT PRIDECO, INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By: ____________________________________
Authorized Signatory
Dated: December 4, 2000
================================================================================
A-1
101
(Back of Note)
9 5/8% Senior Notes due 2007
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.](1)
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "U.S.
-----------------------------
(1) Used on Global Note only.
A-2
102
SECURITIES ACT"), OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES
ACT. 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 U.S. SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT
TO RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (2) AGREES
THAT IT 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 U.S.
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 THE ISSUER OR ANY AFFILIATE OF THE ISSUER WERE
THE OWNERS 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 U.S. 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 U.S. 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) TO CERTAIN INSTITUTIONAL
ACCREDITED INVESTORS WITHIN THE MEANING OF SUBPARAGRAPHS (A)(1), (2) OR
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW OR FOR OFFER OR
SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, (E) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
U.S. SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE U.S. 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
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LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE, AND THE REGISTRAR SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) OR (F) TO REQUIRE THAT AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY, THE TRUSTEE AND
THE REGISTRAR IS COMPLETED AND DELIVERED BY THE TRANSFEROR. 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 MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE U.S. SECURITIES ACT.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Grant Prideco, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
9 5/8% per annum until maturity and shall pay the Liquidated Damages, if any,
payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company shall pay interest and Liquidated Damages, if any,
semi-annually on June 1 and December 1 of each 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 shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from December 4, 2000;
provided, however, 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 June 1, 2001. 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 shall be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay principal, premium, if any,
interest and Liquidated Damages, if any, on the Notes to the persons who are
registered Holders of Notes at the close of business on the May 15 or November
15 next preceding the interest payment date, even if such Notes are cancelled
after such record date and on or before such interest payment date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes shall be payable by wire transfer of immediately available funds to
the registered Holder of the relevant Global Note and, with respect to
certificated Notes, by wire transfer of immediately available funds in
accordance with instructions provided by the registered holders of
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certificated Notes or, if no such instructions are specified, by mailing a check
to each such Holder's registered address. 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.
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust Company
of New York, the Trustee under the Indenture, shall 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 December 4, 2000 ("Indenture") between the Company and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 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 limited to $200.0 million in aggregate
principal amount.
5. OPTIONAL REDEMPTION.
The Company may redeem the Notes, at its option, in whole or in part,
at any time or from time to time prior to their maturity at a redemption price
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
to the redemption date, plus a premium (the "Make-Whole Premium"), if any. In no
event will the redemption price be less than 100% of the principal amount of the
Notes plus accrued and unpaid interest, if any, to the date of redemption.
The Make-Whole Premium with respect to any Note (or portion thereof) to
be redeemed shall be an amount equal to the excess, if any, of (1) the sum of
the present values, calculated as of the date of redemption, of (a) each
interest payment that, but for such redemption, would have been payable on such
Note (or portion thereof) on each payment date occurring after the redemption
date, and (b) the principal amount that, but for such redemption, would have
been payable at the final maturity of such Note (or portion thereof), over (2)
the principal amount of the Note (or portion thereof).
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder shall have the right to require the Company to make an offer (a "Change
of
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Control Offer") to each Holder to repurchase all or any part, equal to $1,000 or
an integral multiple of $1,000, of the Holder's Notes at an offer price in cash
equal to 101% of the aggregate principal amount of Notes repurchased, plus
accrued and unpaid interest and Liquidated Damages, if any, on Notes repurchased
to the date fixed for repurchase (the "Change of Control Payment").
(b) If the Company or a Restricted Subsidiary consummates any Asset
Sales, when the aggregate amount of Excess Proceeds exceeds $10.0 million in any
calendar year, the Company shall make a pro rata offer to purchase (an "Asset
Sale Offer") to all Holders of Notes and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in
the Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess Proceeds. The
offer price in any Asset Sale Offer will be equal to 100% of principal amount
plus accrued and unpaid interest 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 the 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 shall 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 deemed to have been
reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption shall 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 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. 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.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
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00. 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 voting as a single class, 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 principal amount of the then outstanding Notes voting
as a single class. 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
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, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include, in summary form:
(a) default in the payment when due of principal of or premium, if any, on any
Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise; (b) default in the payment when due of interest on, or
Liquidated Damages with respect to, any Note, and such default continues for a
period of 30 days; (c) default in the performance or breach of the provisions by
the Company or any of its Restricted Subsidiaries of 4.07, 4.09 or Section 5.01
of the Indenture; (d) default in the performance by the Company or any of its
Restricted Subsidiaries of Sections 4.15 or 4.16 of the Indenture, and such
default continues for a period of 30 days after written notice; (e) default in
the performance of or breaches any other covenant or agreement of the Company in
the Indenture or under the Notes (other than a default specified in clause (a),
(b), (c) or (d) above) by the Company or any of its Restricted Subsidiaries and
such default or breach continues for a period of 60 days after written notice by
the Trustee to the Company or by the Holders of 25% or more in aggregate
principal amount of the Notes to the Company and the Trustee; (f) certain
defaults 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 date
of the Indenture; (g) default by the Company or any of its Subsidiaries in the
payment of final judgments aggregating in excess of $10.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days; (h) 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
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) 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
principal amount of the then outstanding Notes may declare all the Notes to be
due and
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payable, subject to certain conditions. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes shall 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 aggregate 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 and premium, if any, 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. No recourse for the payment of the
principal of, premium, if any, or interest or Liquidated Damages, if any, on any
of the Notes, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company contained in the Indenture or in any of the Notes, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or past, present or future director, officer, employee, controlling
person or stockholder of the Company. 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 ENT (=
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. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes
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shall have all the rights set forth in the Registration Rights Agreement dated
as of December 4, 2000, between the Company and the parties named on the
signature pages thereof (the "Registration Rights Agreement").
18. 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.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Grant Prideco, Inc.
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security 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: ____________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased: $________
Date: _______________
Your Signature: _________________________
(Sign exactly as your name appears on the
Note)
Signature Guarantee:____________________
Tax Identification No: _________________
X-00
000
XXXXXXXX XX XXXXXXXXX OF INTERESTS IN THE GLOBAL NOTE
The initial principal amount of this Global Note is Two
Hundred Million Dollars ($200,000,000). 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, resulting in increases or decreases of the
principal amount of this Global Note, have been made:
Date of Amount of Amount of Principal Amount Signature of
Exchange decrease in increase in of this Global authorized
Principal Amount Principal Amount Note following officer
of this of this such decrease of Trustee or
Global Note Global Note (or increase) Custodian
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Grant Prideco, Inc.
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9-5/8% Senior Notes due 2007 of Grant Prideco, Inc.
---------------------------------------------------
Reference is hereby made to the Indenture, dated as of
December 4, 2000 (the "Indenture"), between Grant Prideco, Inc., as issuer (the
"Company"), and United States Trust Company of New York, 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:
A. [CHECK ALL THAT APPLY]
1. [ ] Check if Transferee shall 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 (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 shall be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note or the Definitive Note and in the
Indenture and the Securities Act.
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2. [ ] Check if Transferee shall 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 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 efforts have been made in contravention of the
requirements of 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 shall 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 and complete if Transferee shall take delivery of a
beneficial interest in a Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule
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144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it
has not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture, and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor has attached
to this certification), to the effect that such Transfer is in 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 shall be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Definitive Notes and in the
Indenture and the Securities Act.
5. [ ] CHECK IF TRANSFEREE SHALL 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 shall 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 shall 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 shall not be subject
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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.
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: ________________ , _________
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ______ ), or
(ii) [ ] Regulation S Global Note (CUSIP ______ ), or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee shall 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.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Grant Prideco, Inc.
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9-5/8% Senior Notes due 2007 of Grant Prideco, Inc.
---------------------------------------------------
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of December 4, 2000
(the "Indenture"), between Grant Prideco, Inc., as issuer (the "Company"), and
United States Trust Company of New York, 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 (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
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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 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 shall continue
to be subject to the
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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 shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
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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 Owner]
By: _______________________________
Name:
Title:
Dated: ________________ , ____
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Grant Prideco, Inc.
1450 Lake Xxxxxxx Drive, Suite 000
Xxx Xxxxxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: 9-5/8% Senior Notes due 2007
----------------------------
Reference is hereby made to the Indenture, dated as of December 4, 2000
(the "Indenture"), by and between Grant Prideco, Inc. as issuer (the "Company"),
and United States Trust Company of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter, (D) outside the United States in
accordance with Rule 904 of
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Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note or beneficial interest in a Global Note
from the Company in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by
the Company will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by the Company for our own account or for one or more accounts (each of which is
an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
----------------------------------------
[Insert Name of Accredited Investor]
By: ___________________________________
Name:
Title:
Dated: _____________________________
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