Exhibit 4.2
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ALLERGAN, INC.
SENIOR DEBT SECURITIES
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INDENTURE
DATED AS OF APRIL 12, 2006
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..................... 1
Section 1.01. Definitions....................................... 1
Section 1.02. Incorporation by Reference of Trust Indenture
Act............................................ 8
Section 1.03. Rules of Construction............................. 8
ARTICLE 2 THE NOTES...................................................... 8
Section 2.01. Terms of the Notes................................ 8
Section 2.02. Form and Dating................................... 9
Section 2.03. Execution and Authentication...................... 10
Section 2.04. Registrar and Paying Agent........................ 11
Section 2.05. Paying Agent to Hold Money and Notes in Trust..... 11
Section 2.06. Noteholder Lists.................................. 12
Section 2.07. Transfer and Conversion........................... 12
Section 2.08. Replacement Notes................................. 13
Section 2.09. Outstanding Notes; Determinations of Holders'
Action......................................... 14
Section 2.10. Temporary Notes................................... 14
Section 2.11. Cancellation...................................... 15
Section 2.12. Persons Deemed Owners............................. 15
Section 2.13. Legend; Additional Transfer and Exchange
Requirements................................... 15
Section 2.14. CUSIP Numbers..................................... 20
Section 2.15. Additional Notes.................................. 21
Section 2.16. Additional Interest Under Registration Rights
Agreements..................................... 21
ARTICLE 3 REDEMPTION..................................................... 21
Section 3.01. Optional Redemption............................... 21
Section 3.02. Notice to Trustee................................. 22
Section 3.03. Selection of Notes to be Redeemed................. 22
Section 3.04. Notice of Redemption.............................. 22
Section 3.05. Effect of Notice of Redemption.................... 22
Section 3.06. Deposit of Redemption Price....................... 23
Section 3.07. Notes Redeemed in Part............................ 23
ARTICLE 4 COVENANTS...................................................... 23
Section 4.01. Payment of Notes.................................. 23
Section 4.02. SEC Reports....................................... 23
Section 4.03. Compliance Certificate............................ 23
Section 4.04. Further Instruments and Acts...................... 23
Section 4.05. Limitations on Liens.............................. 23
Section 4.06. Limitation on Sale and Leasebacks................. 25
Section 4.07. Corporate Existence............................... 25
Section 4.08. Maintenance of Properties......................... 25
Section 4.09. Payment of Taxes and Other Claims................. 25
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TABLE OF CONTENTS
(continued)
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Section 4.10. Waiver of Covenants............................... 26
ARTICLE 5 SUCCESSOR CORPORATION.......................................... 26
Section 5.01. When Company May Merge or Transfer Assets......... 26
Section 5.02. Successor Corporation Substituted................. 26
ARTICLE 6 DEFAULTS AND REMEDIES.......................................... 27
Section 6.01. Events of Default................................. 27
Section 6.02. Acceleration...................................... 28
Section 6.03. Other Remedies.................................... 28
Section 6.04. Waiver of Past Defaults........................... 29
Section 6.05. Control by Majority............................... 29
Section 6.06. Limitation on Suits............................... 29
Section 6.07. Rights of Holders to Receive Payment.............. 29
Section 6.08. Collection Suit by Trustee........................ 30
Section 6.09. Trustee May File Proofs of Claim.................. 30
Section 6.10. Priorities........................................ 30
Section 6.11. Undertaking for Costs............................. 31
Section 6.12. Waiver of Stay; Extension or Usury Laws........... 31
ARTICLE 7 TRUSTEE........................................................ 31
Section 7.01. Duties of Trustee................................. 31
Section 7.02. Rights of Trustee................................. 32
Section 7.03. Individual Rights of Trustee etc.................. 33
Section 7.04. Trustee's Disclaimer.............................. 33
Section 7.05. Notice of Defaults................................ 33
Section 7.06. Reports by Trustee to Holders..................... 33
Section 7.07. Compensation and Indemnity........................ 33
Section 7.08. Replacement of Trustee............................ 34
Section 7.09. Successor Trustee by Merger....................... 35
Section 7.10. Eligibility; Disqualification..................... 35
Section 7.11. Preferential Collection of Claims Against
Company........................................ 35
ARTICLE 8 DISCHARGE OF INDENTURE......................................... 35
Section 8.01. Discharge of Liability on Notes................... 35
Section 8.02. Repayment to the Company.......................... 35
ARTICLE 9 SUPPLEMENTAL INDENTURES........................................ 36
Section 9.01. Supplemental Indentures without Consent of
Holders........................................ 36
Section 9.02. Supplemental Indentures with Consent of
Holders........................................ 36
Section 9.03. Compliance with Trust Indenture Act............... 37
Section 9.04. Revocation and Effect of Consents, Waivers and
Actions........................................ 37
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TABLE OF CONTENTS
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Section 9.05. Notation on or Exchange of Notes.................. 37
Section 9.06. Trustee to Sign Supplemental, Indentures.......... 38
Section 9.07. Effect of Supplemental Indentures................. 38
ARTICLE 10 SINKING FUNDS................................................. 38
Section 10.01. No Sinking Funds.................................. 38
ARTICLE 11 MISCELLANEOUS................................................. 38
Section 11.01. Trust Indenture Act Controls...................... 38
Section 11.02. Notices........................................... 38
Section 11.03. Communication by Holders with Other Holders....... 39
Section 11.04. Certificate and Opinion as to Conditions
Precedent...................................... 39
Section 11.05. Statements Required in Certificate or
Opinion........................................ 39
Section 11.06. Separability Clause............................... 40
Section 11.07. Rules by Trustee, Paying Agent and Registrar...... 40
Section 11.08. Legal Holidays.................................... 40
Section 11.09. Governing Law..................................... 40
Section 11.10. No Recourse Against Others........................ 40
Section 11.11. Successors........................................ 40
Section 11.12. Effect of Headings and Table of Contents.......... 40
Section 11.13. Benefits of Indenture............................. 40
Section 11.14. Multiple Originals................................ 41
Exhibit A Form of Note
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Indenture dated as of April 12, 2006 between Allergan, Inc., a
Delaware corporation (the "Company"), and Xxxxx Fargo Bank, National Association
(the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the 5.75% Senior Notes due
2016:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Additional Interest" means all additional interest then owing
pursuant to Section 8 of the Registration Rights Agreement.
"Additional Notes" means an unlimited additional aggregate principal
amount of Notes (other than Initial Notes) issued after the date hereof pursuant
to Section 2.15 as part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means any Registrar and Paying Agent.
"Authorized Newspaper" means a newspaper, in the English language or,
at the option of the Company, in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
are authorized or obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Certificated Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.02(d) hereof,
substantially in the form of Exhibit A hereto except that such note shall not
bear the Global Notes Legend and shall not have the "Schedule of Interests in
the Global Note" attached thereto.
"Clearstream" means Clearstream Banking, Societe Anonyme.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its secretary or an Assistant Secretary, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the Notes to be redeemed, that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption
Date, the Reference Treasury Dealer Quotations for that Redemption Date.
"Consolidated Tangible Net Assets" means the total of the Net Tangible
Assets of the Company and its consolidated Subsidiaries, included in their
financial statements prepared on a consolidated basis in accordance with
generally accepted accounting principles, after eliminating all intercompany
items.
"Corporate Trust Office" means the office of the Trustee at which any
particular time this Indenture shall be principally administered, which
initially shall be 000 Xxxxxxxx Xxxx., 00xx Xxxxx, Xxx Xxxxxxx, XX 00000.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
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"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in the form of one or more Global Notes, the person designated
as Depositary by the Company, which Depositary shall be a clearing agency
registered under the Exchange Act; and if at any time there is more than one
such person, "Depositary" as used with respect to the Notes shall mean the
Depositary with respect to the Notes.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company.
"Euro-clear" means the operator of the Euro-clear System, an
international securities clearing house.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear Clearance System.
"Event of Default" shall have the meaning set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means debt securities of the Company substantially
identical in all material respects to Notes originally issued pursuant to an
exemption from registration under the Securities Act (except that the transfer
restrictions pertaining thereto, the provisions for additional interest and the
first interest payment date will be modified or eliminated, as appropriate), to
be issued pursuant to this Indenture pursuant to a Registered Exchange Offer for
a like principal amount of Notes originally issued pursuant to an exemption from
registration under the Securities Act, and any replacement Notes issued therefor
in accordance with this Indenture.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Funded Debt" means all indebtedness maturing one year or more from
the date of the creation thereof, all indebtedness directly or indirectly
renewable or extendable, at the option of the debtor, by its terms or by the
terms of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof, and all indebtedness under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more.
"Global Note" means a permanent Global Note substantially in the form
of Exhibit A hereto that bears the Global Notes Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that represents all or a part of the Notes and is deposited with or on behalf of
and registered in the name of the Depositary.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
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"Initial Notes" means the initial $800,000,000 aggregate principal
amount of Notes originally issued under this Indenture on the date hereof, and
any replacement Notes, and Exchange Notes issued therefor in accordance with
this Indenture.
"Interest Payment Date," when used with respect to any Note, means the
date an installment of interest is due and payable on such Note.
"Legal Holiday" shall have the meaning set forth in Section 11.08.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance.
"Maturity," means the date on which the Principal of a Note becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Maturity Date" has the meaning set forth in Section 2.01.
"Net Tangible Assets" of any Person means the total of all assets
properly appearing on a balance sheet of such Person prepared in accordance with
generally accepted accounting principles, after deducting from such total,
without duplication of deductions, (a) all current liabilities of such Person
under generally accepted accounting principles, (b) that portion of the book
amount of all such assets which would be treated as intangibles under generally
accepted accounting principles, including, without limitation, all such items as
good will, trademarks, trade names, brands, copyrights, patents, licenses and
rights with respect to the foregoing and unamortized debt discount and expense;
and (c) the amount, if any, at which any stock of such Person appears on the
asset side of such balance sheet.
"Notes" means any of the Company's 5.75% Senior Notes due 2016 issued
and authenticated pursuant to this Indenture. All Initial Notes and the
Additional Notes shall be treated as a single class for all purposes under this
Indenture.
"Noteholder" or "Holder," when used with respect to any Note, means,
in the case of a Certificated Note, a person in whose name a Note is registered
on the Registrar's books.
"Notice of Default" shall have the meaning set forth in Section 6.01.
"Officer" means the chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate signed in the name
of the Company by its Chairman of the Board, a Vice Chairman, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.04 and 11.05, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"Outstanding Notes" shall have the meaning set forth in Section 2.09.
"Paying Agent" shall have the meaning set forth in Section 2.04.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
or government or any agency or political subdivision thereof.
"Principal" or "Principal Amount" of a Note, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Note.
"Private Placement Legend" means the legend set forth in Section
2.13(g) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Reference Treasury Dealer" means Banc of America Securities LLC,
Citigroup Global Markets Inc., Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co.
Incorporated, and any successor firm; provided that, if any of Banc of America
Securities LLC, Citigroup Global Markets Inc., Xxxxxxx, Sachs & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated ceases to be a primary U.S. Government securities
dealer, the Company will substitute another nationally recognized investment
banking firm that is a primary U.S. Government securities dealer.
"Reference Treasury Dealer Quotations" means, with respect to the
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third Business Day preceding that Redemption Date.
"Redemption Date" or "redemption date," when used with respect to any
Note to be redeemed, shall mean the date specified for redemption of such Note
in accordance with the terms of such Note and this Indenture.
"Registered Exchange Offer" means an exchange offer by the Company
registered under the Securities Act pursuant to which Notes originally issued
pursuant to an exemption from registration under the Securities Act are
exchanged for Exchange Notes not bearing the Private Placement Legend.
"Registrar" shall have the meaning set forth in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 12, 2006, by and among the Company, and the other
parties named on the signature 12ges thereof, as such agreement may be amended,
modified or supplemented from time to time,
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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.
"Regular Record Date" shall have the meaning set forth in Section
2.01.
"Remaining Schedule Payments" means the remaining scheduled payments
of principal of and interest on the Notes that would be due after the related
Redemption Date but for that redemption. If that Redemption Date is not an
Interest Payment Date, the amount of the next succeeding scheduled interest
payment on the Notes will be reduced by the amount of interest accrued on the
Notes to such Redemption Date.
"Restricted Certificated Note" means a Certificated Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Property" means (a) any manufacturing facility, or portion
thereof, owned or leased by the Company or any Subsidiary and located within the
continental United States, which, in the opinion of the Board of Directors, is
of material importance to the business of the Company and its Subsidiaries taken
as a whole, but no such manufacturing facility, or portion thereof, shall be
deemed of material importance if its gross book value (before deducting
accumulated depreciation) is less than 2% of Consolidated Tangible Net Assets,
or (b) any shares of capital stock of any Subsidiary owning any such
manufacturing facility. As used in this definition, "manufacturing facility"
means property, plant and equipment used for actual manufacturing such as
quality assurance, engineering, maintenance, staging area for work in process
materials, employees' eating and comfort facilities and manufacturing
administration, and it excludes sales offices, research facilities and
facilities used only for warehousing or general administration.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a Global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary 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 144A.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Subsidiary leases any Restricted Property
that has been or
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is to be sold or transferred by the Company or the Subsidiary to such Person,
other than (1) temporary leases for a term, including renewals at the option of
the lessee, of not more than three years, (2) leases between the Company and a
Subsidiary or between Subsidiaries, (3) leases of a Restricted Property executed
by the time of, or within 12 months after the latest of, the acquisition, the
completion of construction or improvement, or the commencement of commercial
operation of the Restricted Property, and (4) arrangements pursuant to any
provision of law with an effect similar to the former Section 168(f)(8) of the
Internal Revenue Code of 1954.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity," when used with respect to any Note or any
installment of Principal thereof or interest thereon, means the date specified
in such Note as the fixed date on which an amount equal to the Principal of such
Note or an installment of Principal thereof or interest thereon is due and
payable.
"Subsidiary" means a corporation of which a majority of the Capital
Stock having voting power under ordinary circumstances to elect a majority of
the board of directors of such corporation is owned by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, except as provided in Section 9.03.
"Treasury Rate" means, with respect to any Redemption Date for the
Notes, the rate per annum equal to the semi-annual equivalent yield to maturity
(computed as of the third Business Day immediately preceding that Redemption
Date) of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that Redemption Date. The Treasury Rate shall be
calculated on the third Business Day preceding the Redemption Date.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"United States" means the United States of America, its territories,
its possessions (including the Commonwealth of Puerto Rico), and other areas
subject to its jurisdiction.
"Unrestricted Certificated Note" means one or more Certificated Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent Global Note substantially
in the form of Exhibit A hereto that bears the Global Notes Legend and that has
the "Schedule of
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Exchanges of Interests in the Global Note" attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Notes that do not bear the Private Placement Legend.
"Value" means, with respect to a Sale and Leaseback Transaction, an
amount equal to the present value of the lease payments with respect to the term
of the lease remaining on the date as of which the amount is being determined,
without regard to any renewal or extension options contained in the lease,
discounted at the weighted average interest rate on the Notes which are
outstanding on the effective date of such Sale and Leaseback Transaction and
which have the benefit of Section 4.06.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. If
any provision of this Indenture limits, qualifies or conflicts with the duties
that would be imposed by any of Sections 310 to 317 of the TIA through operation
of Section 318(c) thereof on any person if this Indenture were qualified under
the TIA, such imposed duties shall control. Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
successor obligor upon the notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA by reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein have the meanings assigned to them by
such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the
United States as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
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(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE NOTES
SECTION 2.01. Terms of the Notes. The entire outstanding principal of
the Notes will mature on April 1, 2016 (the "Maturity Date").
The Notes shall be in denominations of $2,000 and any integral
multiple of $1,000 in excess thereof. The Notes shall be denominated in U.S.
dollars and all payments of principal and interest on the Notes shall be made in
U.S. dollars.
The Notes shall bear interest at a rate of 5.75% per annum; the date
from which interest shall accrue shall be April 12, 2006; the Interest Payment
Dates for the Notes on which interest shall be payable shall be April 1 and
October 1 in each year, beginning October 1, 2006; the Regular Record Dates for
the interest payable on the Notes on any Interest Payment Date shall be the
March 15 or September 15 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date (each a "Regular Record Date").
Interest shall accrue on the basis of a 360-day year, consisting of twelve
30-day months. Interest on any Note shall be payable only to the Person in whose
name that Note is registered at the close of business on the Regular Record Date
for such interest payment. If any Interest Payment Date, Redemption Date or
Maturity Date of the Notes is not a Business Day, then payment of principal and
interest will be made on the next succeeding Business Day. No interest will
accrue on the amount so payable for the period from such Interest Payment Date,
Redemption Date or Maturity Date, as the case may be, to the date payment is
made.
The place of payment where the principal of and interest on the Notes
shall be payable and the Notes may be surrendered for the registration of
transfer or exchange shall be the Corporate Trust Office of the Trustee. The
place where notices or demands to or upon the Company in respect of the Notes
and this Indenture may be served shall be the Corporate Trust Office of the
Trustee.
The Notes will be redeemable at the option of the Company pursuant to
Article III.
SECTION 2.02. Form and Dating.
The Notes shall be substantially in the form of Exhibit A, which is a
part of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage (provided that any such notation,
legend or endorsement required by usage is in a form acceptable to the Company).
The Company shall provide any such notations, legends or endorsements to the
Trustee in writing. Each Note shall be dated the date of its authentication.
(a) Restricted Global Notes. All of the Notes are initially being
offered and sold to QIBs in reliance on Rule 144A and shall be issued initially
in the form of one or more
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Restricted Global Notes, which shall be deposited on behalf of the purchasers of
the securities represented thereby with the Trustee, at its Corporate Trust
Office, as custodian for the Depositary, which shall initially be DTC, and
registered in the name of its nominee, Cede & Co. (or any successor thereto),
for the accounts of participants in the Depositary, duly executed by the Company
and authenticated by the Trustee as hereinafter provided.
(b) Global Notes in General. 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. Except as provided in this
Section 2.02, or in Sections 2.07 or 2.13 hereof, owners of beneficial interests
in Global Notes will not be entitled to receive physical delivery of
Certificated Notes.
Any adjustment of the aggregate Principal Amount of a Global Note to
reflect the amount of any increase or decrease in the Principal Amount of
outstanding Notes represented thereby shall be made by the Trustee in accordance
with instructions given by the Holder thereof as required by Section 2.13 hereof
and shall be made on the records of the Trustee and the Depositary, subject in
each case to compliance with applicable procedures.
(c) Book-Entry Provisions. This Section 2.02(c) shall apply only to
Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.02(c), authenticate and deliver initially one or more Global
Notes that (a) shall be registered in the name of the Depositary, (b) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN WHOLE
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
10
WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF."
(d) Certificated Notes. Notes not issued as interests in the Global
Notes will be issued in certificated form substantially in the form of Exhibit A
attached hereto.
SECTION 2.03. Execution and Authentication.
(a) The Notes shall be executed on behalf of the Company by any
Officer by manual or facsimile signature.
(b) In accordance with the Registration Rights Agreement, the Company
will execute and upon Company Order, the Trustee will authenticate Exchange
Notes and cancel a like principal amount of other Initial Notes.
(c) Notes bearing the manual or facsimile signatures of an individual
who was at the time of the execution of the Notes the proper Officer of the
Company shall bind the Company, notwithstanding that such individual has ceased
to hold such office prior to the authentication and delivery of such Notes or
did not hold such office at the date of authentication of such Notes.
(d) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer of the
Trustee, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
(e) The Notes shall be issued only in registered form without coupons
and only in denominations specified in Section 2.01 hereof.
(f) The Trustee shall have the right to decline to authenticate and
deliver any securities under this Section if the Trustee, being advised by
counsel, determines that such action may not be lawfully taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.
SECTION 2.04. 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 for other Notes
("Registrar") and an office or agency where Notes may be presented for purchase
or payment ("Paying Agent"). The Registrar shall keep a register of the Notes
and of their registration of transfer and exchange. The Company may have one or
more co-registrars and one or more additional paying agents.
(b) The Company shall enter into an appropriate agency agreement with
any Registrar or co-registrar or Paying Agent (other than the Trustee). The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a
11
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar.
(c) The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Notes.
SECTION 2.05. Paying Agent to Hold Money and Notes in Trust.
Except as otherwise provided herein, by no later than 10:00 a.m., New
York City time, on or prior to each due date of payments in respect of any Note,
the Company shall deposit with the Paying Agent a sum of money (in immediately
available funds if deposited on the due date). 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 Noteholders or the Trustee all money held
by the Paying Agent for the making of payments in respect of the Notes and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
so held in trust. If the Company or a Subsidiary or an Affiliate of either of
them acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money.
SECTION 2.06. Noteholder 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
Noteholders. If the Trustee is not the Registrar, the Company shall cause to be
furnished to the Trustee at least semiannually on March 15 and September 15 a
listing of Noteholders dated within 15 days of the date on which the list is
furnished 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 Noteholders.
SECTION 2.07. Transfer and Conversion.
Subject to Section 2.13 hereof,
(a) upon surrender for registration of transfer of any Note, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Noteholder or such Noteholder's attorney duly authorized in
writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.04, the Company shall execute, and the
Trustee upon receipt of a Company Order shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations, of a like aggregate Principal Amount.
The Company shall not charge a service charge for any registration of transfer
or exchange, but the Company or the Trustee may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges that may
be imposed in connection with the registration of transfer or exchange of the
Notes from the Noteholder requesting such registration of transfer or exchange.
12
At the option of the Holder, Certificated Notes may be exchanged for
other Notes of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Notes to be exchanged, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Noteholder or such Noteholder's attorney duly authorized in writing, at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee upon receipt of a Company Order shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Note remains outstanding and is held by or on behalf of the Depositary,
transfers of a Global Note, in whole or in part, shall be made only in
accordance with Section 2.13 and this Section 2.07(b). Transfers of a Global
Note shall be limited to transfers of such Global Note in whole, or in part, to
nominees of the Depositary or to a successor of the Depositary or such
successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Notes.
(d) Any Registrar appointed pursuant to Section 2.04 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery of the Notes by such Registrar upon registration of
transfer or exchange of Notes.
(e) No Registrar shall be required to make registrations of transfer
or exchange of Notes during any periods designated in the text of the Notes or
in this Indenture as periods during which such registration of transfers and
exchanges need not be made.
SECTION 2.08. Replacement Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall execute and upon Company Order the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code of the State of New York are met and the Holder
satisfies any other reasonable requirements of the Trustee. If required by the
Trustee or the Company, such Holder shall furnish an affidavit of loss and
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, any Agent from any loss that any of them may
suffer if a Note is replaced, and, in the absence of notice to the Company or
the Trustee that such Note has been acquired by a protected purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and Principal Amount,
bearing a number not contemporaneously outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Note, pay or purchase such Note, as the case may be.
13
(c) Upon the issuance of any new Note under this Section 2.08, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
(d) Every new Note issued pursuant to this Section 2.08 in exchange
for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall
constitute an original additional contractual obligation of the Company and any
other obligor upon the Notes, whether or not the mutilated, destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
(e) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.09. Outstanding Notes; Determinations of Holders' Action.
(a) Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those paid pursuant to Section
2.08 and delivered to it for cancellation and those described in this Section
2.09 as not outstanding (the "Outstanding Notes"). A Note does not cease to be
outstanding because the Company or an Affiliate thereof holds the Note;
provided, however, that in determining whether the Holders of the requisite
Principal Amount of Notes have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which a Trust Officer of the Trustee actually knows to be so
owned shall be so disregarded. Subject to the foregoing, only Notes outstanding
at the time of such determination.
(b) If a Note is replaced pursuant to Section 2.08, the replaced Note
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to each of them that the replaced Note is held by a bona fide
purchaser in whose hands such Note is a valid obligation of the Company.
(c) If the Paying Agent holds, in accordance with this Indenture, on a
Stated Maturity, money or securities, if permitted hereunder, sufficient to pay
Notes payable on that date, then immediately after such date such Notes shall
cease to be outstanding and interest on such Notes shall cease to accrue whether
or not the Note is delivered to the Paying Agent.
SECTION 2.10. Temporary Notes.
(a) Pending the preparation of definitive Notes, the Company may
execute, and the Trustee upon receipt of a Company Order shall authenticate and
deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they
14
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Notes may determine, as
conclusively evidenced by their execution of such Notes.
(b) If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. 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 2.04, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee upon receipt of a Company Order shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Notes of authorized denominations. Until so exchanged the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
SECTION 2.11. Cancellation.
All Notes surrendered for payment, purchase by the Company pursuant to
Article 3, or registration of transfer or exchange shall, if surrendered to any
person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Trustee. The Company may not issue
new Notes to replace Notes it has paid or delivered to the Trustee for
cancellation. No Notes shall be authenticated in lieu of or in exchange for any
Notes cancelled as provided in this Section, except as expressly permitted by
this Indenture. All cancelled Notes held by the Trustee shall be disposed of by
the Trustee in accordance with the Trustee's customary procedure.
SECTION 2.12. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of the Note and interest thereon, and
for all other purposes whatsoever, whether or not such Note be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 2.13. Legend; Additional Transfer and Exchange Requirements.
(a) If Notes are issued upon the transfer, exchange or replacement of
Notes subject to restrictions on transfer and bearing the legends set forth in
Section 2.13(g) (collectively, the "Legend"), or if a request is made to remove
the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend
shall not be removed, as the case may be, unless there is delivered to the
Company and the Registrar such satisfactory evidence, which shall include an
Opinion of Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A or Rule 144 under the Securities Act or that such Notes are not
"restricted" within the meaning of Rule 144 under the
15
Securities Act; provided that no such evidence need be supplied in connection
with the sale of such Note pursuant to a registration statement that is
effective at the time of such sale. Upon (1) provision of such satisfactory
evidence if requested, or (2) notification by the Company to the Trustee and
Registrar of the sale of such Note pursuant to a registration statement that is
effective at the time of such sale, the Trustee, upon Company Order, shall
authenticate and deliver a Note that does not bear the Legend. If the Legend is
removed from the face of a Note and the Note is subsequently held by an
Affiliate of the Company, the Legend shall be reinstated.
(b) Subject to Sections 2.13(c)(i) and 2.13(f) and in compliance with
Section 2.13(d), every Note shall be subject to the restrictions on transfer
provided in the Legend. Whenever any Restricted Note other than a Restricted
Global Note is presented or surrendered for registration of transfer or in
exchange for a Note registered in a name other than that of the Holder, such
Note must be accompanied by a certificate, dated the date of such surrender and
signed by the Holder of such Note, as to compliance with such restrictions on
transfer. The Registrar shall not be required to accept for such registration of
transfer or exchange any Note not so accompanied by a properly completed
certificate.
(c) Notwithstanding any other provisions of this Indenture or the
Notes, (A) transfers of a Global Note, in whole or in part, shall be made only
in accordance with Section 2.07 and Section 2.13(c)(i), (B) transfer of a
beneficial interest in a Global Note for a Certificated Note shall comply with
Section 2.07 and Section 2.13(c)(ii) below, and (C) transfers of a Certificated
Note shall comply with Section 2.07 and Section 2.13(c)(iii) and (iv) below.
(i) Transfer of Global Note. A Global Note may not be
transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer
to any such other Person may be registered; provided that this clause
(i) shall not prohibit any transfer of a Note that is issued in
exchange for a Global Note but is not itself a Global Note. No
transfer of a Note to any Person shall be effective under this
Indenture or the Notes unless and until such Note has been registered
in the name of such Person. Nothing in this Section 2.13(c)(i) shall
prohibit or render ineffective any transfer of a beneficial interest
in a Global Note effected in accordance with the other provisions of
this Section 2.13(c).
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Note for a Certificated Note. A beneficial interest in a Global
Note may not be exchanged for a Certificated Note except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a request for transfer of a beneficial interest in a Global
Note in accordance with applicable procedures for a Certificated Note
in the form satisfactory to the Trustee, including any information
necessary to ensure compliance with the Securities Act, together with
written instructions to the Trustee to make, or direct the Registrar
to make, an adjustment on its books and records with respect to such
Global Note to reflect a decrease in the aggregate Principal Amount of
the Notes represented by the Global Note, such instructions to contain
information regarding the Depositary account to be credited with such
decrease, then the Trustee shall cause, or direct the Registrar to
cause, in accordance with the standing instructions and
16
procedures existing between the Depositary and the Registrar, the
aggregate Principal Amount of Notes represented by the Global Note to
be decreased by the aggregate Principal Amount of the Certificated
Note to be issued, shall authenticate and deliver such Certificated
Note and shall debit or cause to be debited to the account of the
Person specified in such instructions a beneficial interest in the
Global Note equal to the Principal Amount of the Certificated Note so
issued.
(iii) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal
Principal Amount of Certificated Notes of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met, including any
information necessary to ensure compliance with the Securities Act; provided,
however, that the Certificated Notes surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
(iv) Restrictions on Transfer of a Certificated Note for a
Beneficial Interest in a Global Note. A Certificated Note may not be
exchanged for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Trustee,
together with written instructions directing the Trustee to make, or to direct
the Registrar to make, an adjustment on its books and records with respect to
such Global Note to reflect an increase in the aggregate Principal Amount of the
Notes represented by the Global Note, such instructions to contain information
regarding the Depositary account to be credited with such increase, then the
Trustee shall cancel such Certificated Note and cause, or direct the Registrar
to cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate Principal Amount of
Notes represented by the Global Note to be increased by the aggregate Principal
Amount of the Certificated Note to be exchanged, and shall credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Global Note equal to the Principal Amount of the
Certificated Note so cancelled. If no Global Notes are then outstanding, the
Company shall issue and the Trustee upon receipt of a Company Order shall
authenticate a new Global Note in the appropriate Principal Amount.
(d) The restrictions imposed by the Legend upon the transferability of
any Note shall cease and terminate when such Note has been sold pursuant to an
effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the
17
Securities Act (or any successor provision thereto) or, if earlier, upon the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision). Any Note as to which such
restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon a surrender of such Note for exchange to the
Registrar in accordance with the provisions of this Section 2.13 (accompanied,
in the event that such restrictions on transfer have terminated by reason of a
transfer in compliance with Rule 144 or any successor provision, by an Opinion
of Counsel reasonably acceptable to the Company and the Registrar and addressed
to the Company and the Registrar, to the effect that the transfer of such Note
has been made in compliance with Rule 144 or such successor provision), be
exchanged for a new Note, of like tenor and aggregate principal amount, which
shall not bear the restrictive Legend. The Company shall inform the Trustee of
the effective date of any registration statement registering the offer and sale
of the Notes under the Securities Act. The Trustee or the Registrar shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned Opinion of Counsel or registration statement.
As used in Sections 2.13(b) and (d), the term "transfer" encompasses
any sale, pledge, transfer, hypothecation or other disposition of any Note.
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Notes:
(1) Notwithstanding any other provisions of this Indenture or the
Notes, except as provided in Section 2.13(c)(ii), a Global Note shall not
be exchanged in whole or in part for a Note registered in the name of any
Person other than the Depositary or one or more nominees thereof, provided
that a Global Note may be exchanged for Notes registered in the names of
any person designated by the Depositary in the event that (i) the
Depositary has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Note or such Depositary has ceased
to be a "clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days, (ii)
the Company decides to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary); or (iii) an Event of Default has
occurred and is continuing with respect to the Notes. Any Global Note
exchanged pursuant to clause (i) or (ii) above shall be so exchanged in
whole and not in part, and any Global Note exchanged pursuant to clause
(iii) above may be exchanged in whole or from time to time in part as
directed by the Depositary. Any Note issued in exchange for a Global Note
or any portion thereof shall be a Global Note; provided that any such Note
so issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Note.
(2) Notes issued in exchange for a Global Note or any portion thereof
shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate Principal Amount equal to that of such
Global Note or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable legends provided for herein. Any
Global Note to be exchanged in whole shall be surrendered by the Depositary
to the Trustee, as Registrar. With regard to any Global Note to be
exchanged in part, either
18
such Global Note shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such
Global Note, the Principal Amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Note issuable on
such exchange to or upon the order of the Depositary or an authorized
representative thereof.
(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any Person, including
Agent Members (as defined below) and persons that may hold interests
through Agent Members, to take any action which a holder is entitled to
take under this Indenture or the Notes.
(4) In the event of the occurrence of any of the events specified in
clause (1) above, the Company will promptly make available to the Trustee a
reasonable supply of Certificated Notes in definitive, fully registered
form, without interest coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Note registered in the name of the Depositary or any
nominee thereof, or under any such Global Note, and the Depositary or such
nominee, as the case may be, may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner and holder of
such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent Member may act,
the operation of customary practices of such Persons governing the exercise
of the rights of a holder of any Note.
(f) Registered Exchange Offer. Upon the occurrence of the Registered
Exchange Offer in accordance with the Registration Rights Agreement, the Company
shall issue and, upon receipt of a Company Order in accordance with Section
2.03, 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 Registered Exchange Offer and (ii) Unrestricted
Certificated Notes in an aggregate principal amount equal to the principal
amount of the Certificated Notes accepted for exchange in the Registered
Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global Notes
to be reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of
Certificated Notes so accepted Unrestricted Certificated Notes in the
appropriate principal amount.
19
(g) Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision
thereto), any certificate representing any Note shall bear a legend in
substantially the following form, unless (i) such Certificated Note or Global
Note has been issued pursuant to Section 2.13(f) hereto, or (ii) such Note has
been sold pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time of
such transfer) or transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto), or unless otherwise agreed by the
Company in writing with written notice thereof to the transfer agent:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OR (B) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITIES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) (THE "RESALE RESTRICTION DATE") ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A NON-U.S. PERSON IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF
AVAILABLE), (D) TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER AS DEFINED IN RULE 144A 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, (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE AND THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY.
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Any such Note as to which such restrictions on transfer shall have
expired in accordance with their terms or as to which the conditions for removal
of the foregoing legend set forth therein have been satisfied may, upon
surrender of the certificates representing such Note for exchange in accordance
with the procedures of the transfer agent, be exchanged for a new certificate or
certificates for a like amount of Notes, which shall not bear the restrictive
legend required by this section.
SECTION 2.14. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in
writing of any change in the CUSIP numbers.
SECTION 2.15. Additional Notes. The Company may, from time to time,
subject to compliance with any other applicable provisions of this Indenture,
without the consent of the Holders, create and issue pursuant to this Indenture
Additional Notes having terms and conditions identical to those of the Initial
Notes, except that Additional Notes:
(i) may have a different issue date from the Initial Notes;
(ii) may accrue interest from the date of issue of such
Additional Notes, which may result in a different amount of interest
payable on the first interest payment date than is payable on the
Initial Notes;
(iii) may have terms specified in the Additional Note Board
Resolution or Additional Note Supplemental Indenture for such
Additional Notes making appropriate adjustments applicable to such
Additional Notes in order to conform to and ensure compliance with the
Securities Act (or other applicable securities laws) and any
registration rights or similar agreement applicable to such Additional
Notes, which are not adverse in any material respect to the Holder of
any Initial Notes; and
(iv) may be entitled to additional interest as contemplated in
Section 2.16 not applicable to Initial Notes and may not be entitled
to such additional interest applicable to Initial Notes.
SECTION 2.16. Additional Interest Under Registration Rights
Agreements. Under certain circumstances, the Company may be obligated to pay
Additional Interest to Holders, all as and to the extent set forth in the
Registration Rights Agreement or any registration rights agreement applicable to
Additional Notes. The terms thereof are hereby incorporated herein by reference.
Additional Interest, if required to be paid, is deemed to be interest for
purposes of this Indenture.
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ARTICLE 3
REDEMPTION
SECTION 3.01. Optional Redemption. The Notes shall not be redeemable
at the option of any Holder thereof, whether upon the occurrence of any
particular circumstances or otherwise. The Notes will be redeemable, as a whole
or in part, at the option of the Company, at any time or from time to time, at a
redemption price equal to the greater of (a) 100% of the principal amount of the
Notes to be redeemed and (b) the sum of the present values of the Remaining
Scheduled Payments on such Notes discounted to the Redemption Date, on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a rate equal to the sum of the applicable Treasury Rate plus 15 basis points.
Accrued and unpaid interest will be paid to the Redemption Date.
SECTION 3.02. Notice to Trustee. If the Company elects to redeem Notes
pursuant to the optional redemption provisions of Section 3.01, it shall notify
the Trustee of the Redemption Date and the principal amount of Notes to be
redeemed.
SECTION 3.03. Selection of Notes to be Redeemed.
If less than all the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed in any manner that the Trustee deems fair and
appropriate. The Trustee shall make the selection from Notes outstanding not
previously called for redemption. The Trustee may select for redemption portions
of the principal of Notes that have denominations larger than $2,000. Notes and
portions of them it selects shall be in amounts of $2,000 or whole multiples of
$1,000 in excess thereof.
SECTION 3.04. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail to each Holder whose Notes are to be redeemed (and provide a
copy of such notice to the Trustee).
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 will be issued upon cancellation of the
original Notes;
(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; and
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(f) that interest on Notes called for redemption ceases to accrue on
and after the Redemption Date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense, provided that the Company
makes such request at least two Business Days (or such shorter time as is
reasonably acceptable to the Trustee) prior to the date by which such notice of
redemption must be given to Holders in accordance with this Section 3.4 and
provides the Trustee with all information required for such notice of
redemption.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
redemption is mailed as provided in Section 3.04, Notes called for redemption
become due and payable on the Redemption Date and at the redemption price. A
notice of redemption may not be conditional. Upon surrender to the Paying Agent,
such Notes shall be paid at the redemption price plus accrued interest to the
Redemption Rate.
SECTION 3.06. Deposit of Redemption Price. On or before the Redemption
Date, the Company shall deposit with the Paying Agent money sufficient to pay
the redemption price of and accrued interest, if any, on all Notes to be
redeemed on that date. If the Company complies with the provisions of this
Section, on and after the Redemption Date, interest will cease to accrue on the
Note or the portions of the Notes called for redemption.
SECTION 3.07. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Trustee shall authenticate for the Holder a new Note and
the same maturity equal in principal amount to the unredeemed portion of the
Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes. The Company covenants and agrees for
the benefit of the Holders of the Notes that it will duly and punctually pay the
principal of, premium, if any and interest, on the Notes in accordance with the
terms of the Notes and this Indenture. All payments in respect of the Notes
represented by a Global Note (including the payment of the principal of,
premium, if any and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by the Holder of the Global Notes.
SECTION 4.02. SEC Reports. The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2006) an Officers'
Certificate, one of the signatures of which shall be that of the Company's
principal executive, financial or accounting officer, stating
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whether or not such officers know of any Default that occurred during such
period. If they do, such Officers' Certificate shall describe the Default and
its status.
SECTION 4.04. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. Limitations on Liens. The Company shall not create,
assume or suffer to exist any Lien upon Restricted Property to secure any debt
of the Company, any Subsidiary or any other Person, or permit any Subsidiary so
to do, without making effective provision whereby the Notes then outstanding and
having the benefit of this Section shall be secured by the Lien equally and
ratably with such debt for so long as such debt shall be so secured, except that
the foregoing shall not prevent the Company or any Subsidiary from creating,
assuming or suffering to exist Liens of the following character:
(1) any Lien existing on the date hereof;
(2) any Lien existing on property owned or leased by a corporation at
the time it becomes a Subsidiary;
(3) any Lien existing on property at the time of the acquisition
thereof by the Company or a Subsidiary;
(4) any Lien to secure any debt incurred prior to, at the time of, or
within 12 months after the acquisition of Restricted Property for the
purpose of financing all or any part of the purchase price thereof and any
Lien to the extent that it secures debt which is in excess of such purchase
price and for the payment of which recourse may be had only against such
Restricted Property;
(5) any Lien to secure any debt incurred prior to, at the time of, or
within 12 months after the completion of the construction and commencement
of commercial operation, alteration, repair or improvement of Restricted
Property for the purpose of financing all or any part of the cost thereof
and any Lien to the extent that it secures debt which is in excess of such
cost and for the payment of which recourse may be had only against such
Restricted Property;
(6) any Lien securing debt of a Subsidiary owing to the Company or to
another Subsidiary;
(7) any Lien in favor of the United States of America or any state
thereof or any other country, or any agency, instrumentality or political
subdivision or any of the foregoing, to secure partial, progress, advance
or other payments or performance pursuant to the provisions of any contract
or statute, or any Liens securing industrial development, pollution
control, or similar revenue bonds;
(8) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in
clauses (1) through (7) above, so long as the principal amount of the debt
secured thereby does not exceed the principal
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amount of debt so secured at the time of the extension, renewal or
replacement (except that, where an additional principal amount of debt is
incurred to provide funds for the completion of a specific project, the
additional principal amount, and any related financing costs, may be
secured by the Lien as well) and the Lien is limited to the same property
subject to the Lien so extended, renewed or replaced (plus improvements on
the property); and
(9) any Lien not permitted by clauses (1) through (8) above securing
debt which, together with the aggregate outstanding principal amount of all
other debt of the Company and its Subsidiaries owning Restricted Property
which would otherwise be subject to the foregoing restrictions and the
aggregate Value of existing Sale and Leaseback Transactions which would be
subject to the restrictions of Section 4.06 but for this clause (9), does
not at any time exceed 10% of Consolidated Net Tangible Assets.
SECTION 4.06. Limitation on Sale and Leasebacks. The Company shall not
enter into any Sale and Leaseback Transaction, nor permit any Subsidiary owning
Restricted Property so to do, unless either:
(1) the Company or such Subsidiary would be entitled to incur debt, in
a principal amount at least equal to the Value of such Sale and Leaseback
Transaction, which is secured by Liens on the property to be leased
(without equally and ratably securing the outstanding Notes having the
benefit of Section 4.05) because such Liens would be of such character that
no violation of any of the provisions of Section 4.05 would result, or
(2) the Company during the six months immediately following the
effective date of such Sale and Leaseback Transaction causes to be applied
to (A) the acquisition of Restricted Property or (B) the voluntary
retirement of Funded Debt (whether by redemption, defeasance, repurchase,
or otherwise) an amount equal to the lesser of (i) the net proceeds of the
sale of the Restricted Property leased pursuant to such Sale and Leaseback
Transaction or the fair value of the Restricted Property so leased
(whichever amount is greater) or (ii) the Value of such Sale and Leaseback
Transaction.
SECTION 4.07. Corporate Existence. Subject to Article 5, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise 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 that the loss thereof is not adverse in any material
respect to the Holders.
SECTION 4.08. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this section shall prevent the
Company from discontinuing the operation or maintenance or both of any of such
properties if such
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discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not adverse in any material
respect to the Holders.
SECTION 4.09. Payment of Taxes and Other Claims. The Company will or
will cause a Subsidiary to pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (b)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings or if the Company shall determine that the payment thereof is not
desirable in the conduct of its business or the business of any subsidiary and
that the nonpayment thereof is not disadvantageous in any material respect to
the Holders.
SECTION 4.10. Waiver of Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 4.05 through 4.10 with respect to the Notes if before or after the time
for such compliance the Holders of at least a majority in principal amount of
the Outstanding Notes (including Additional Notes, if any) shall either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into any other person or convey,
transfer or lease all or substantially all of its properties and assets to any
person, unless:
(a) Either (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance, transfer
or lease the properties and assets of the Company substantially as an entirety
(i) shall be a corporation organized and validly existing under the laws of (x)
the United States of America, any State thereof or the District of Columbia, (y)
any member country of the European Union, or (z) any other country if the
organization and existence of the person formed by such consolidation in such
country not impair the rights of Holders, and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Notes and this Indenture; and
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing.
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For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries of
the Company (other than to the Company or another Subsidiary of the Company),
which, if such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company in accordance with Section
5.01, the successor corporation formed by such consolidation or into or with
which the Company is merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall instead refer to
the successor company and not the Company), and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, conveyance or other disposition
(other than a lease) shall be released from all obligations and covenants under
this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs, with
respect to the Notes, if:
(1) the Company defaults in (a) the payment of the principal of any
Note at its Maturity or (b) the payment of any interest upon any Note when
the same becomes due and payable and continuance of such default for a
period of 30 days;
(2) the Company fails to comply with any of its agreements in the
Notes or this Indenture (other than those referred to in clause (1) above
and other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section 6.01 specifically dealt with) and
such failure continues for 60 days after receipt by the Company of a Notice
of Default;
(3) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
company under any Bankruptcy Law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court having jurisdiction in the premises for the appointment of
a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding-up or liquidation of
its affairs, shall have been entered, and such decree or order shall have
remained in force undischarged and unstayed for a period of 60 days;
27
(4) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under any Bankruptcy Law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of it or of its property or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due; and
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Company or any Subsidiary for
borrowed money with a principal amount in excess of $75,000,000 (other than
nonrecourse obligations), whether such indebtedness now exists or shall
hereafter be created, shall occur and shall result in an amount of such
indebtedness in excess of $75,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not be rescinded or annulled, or such
indebtedness shall not have been discharged, within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Notes (including
Additional Notes, if any), a written notice specifying such event of
default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be discharged and
stating that such notice is a "Notice of Defaults" hereunder. If any event
of default or acceleration referred to in this Section 6.01(5) shall cease
or be cured, waived, rescinded or annulled, then the Event of Default by
reason thereof shall be deemed not to have occurred.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Notes (including Additional Notes, if any)
notify the Company and the Trustee, of the Default and the Company does not cure
such Default within the time specified in clause (2) above after receipt of such
notice. Any such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default."
SECTION 6.02. Acceleration. If an Event of Default with respect to the
Notes (other than an Event of Default specified in Section 6.01(3) or (4))
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in aggregate Principal Amount of the Outstanding Notes
(including Additional Notes, if any), by notice to the Company and the Trustee,
may declare the Principal Amount of the Notes to be immediately due and payable.
Upon such a declaration, such Principal (or portion thereof) shall be due and
payable immediately. If an Event of Default specified in Section 6.01(3) or (4)
occurs and is continuing, the Principal (or portion thereof) on all the Notes
shall become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Noteholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Notes (including Additional Notes,
if any) by notice to the Trustee (and without notice to any other Noteholder)
may rescind such acceleration and its consequences if the rescission would not
conflict with any judgment or decree; and all existing Events of Default with
respect to the Notes, have been cured or waived except nonpayment of the
Principal (or portion thereof) of Notes that has become due
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solely as a result of such acceleration and if all amounts due to the Trustee
under Section 7.07 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to (a) collect the
payment of the whole amount then due and payable on the Notes for Principal and
interest, with interest upon the overdue Principal and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest from the date such interest was due, at the rate or rates prescribed
therefor in such Notes and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including amounts due
the Trustee under Section 7.07 or (b) enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Notes or does not produce any of the Notes in the proceeding.
A delay or omission by the Trustee or any Holder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate Principal Amount of the Outstanding Notes (including Additional Notes,
if any), by notice to the Trustee (and without notice to any other Holder), may
on behalf of the Holders of all the Notes waive an existing Default and its
consequences except (1) an Event of Default described in Section 6.01(1) or (2)
a Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of the Holder of each outstanding Note. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate Principal Amount of the Outstanding Notes (including Additional Notes,
if any) may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee with respect to the Notes. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Holder or would involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits. A Holder of any Note may not pursue
any remedy with respect to this Indenture or the Note unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Notes is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Notes (including Additional Notes, if any) make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
29
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
outstanding Notes do not give the Trustee a direction inconsistent with
such request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of any
other Holder or to obtain a preference or priority over any other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Note to receive payment of the Principal of
and interest on such Note on the Stated Maturity or Maturities (or, in the case
of redemption, on the Redemption Date) held by such Holder, on or after the
respective due dates expressed in the Notes or any Redemption Date, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected adversely without the consent of each such
Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
described in Section 6.01(1) with respect to Notes occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to such Notes and
the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the Principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue Principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Notes and to file such 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 any other
amount due the Trustee under Section 7.07) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official 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 the
Trustee any amount due 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.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order and, in
case of the distribution of such money on account of Principal or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid for the Principal and
interest on the Notes in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for Principal and
interest; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. At least 15 days before such record
date, the Company shall mail to each Noteholder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
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 Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) 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, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Outstanding
Notes (including Additional Notes, if any), or to any suit instituted by any
Holder for the enforcement of the payment of the Principal of or interest on any
Note on or after the Stated Maturity or Maturities expressed in such Note (or,
in the case of redemption, on or after the Redemption Date).
SECTION 6.12. Waiver of Stay; Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which 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 will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
31
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the certificates
and opinions, which pursuant to this Indenture are specifically
required to be furnished to the Trustee, to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
32
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for any interest on any money received by it except as the
Trustee may otherwise agree with the Company.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. 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.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.01(c), the Trustee shall
not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.03. Individual Rights of Trustee etc. 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 its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar or co-registrar
or any other agent of the Company may do the same with like rights. However the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Notes.
The Trustee shall not be accountable for the Company's use of the proceeds from
the Notes and, shall not be responsible for any statement in the registration
statement for the Notes under the Securities Act, or in the Indenture or the
Notes (other than its certificate of authentication) or for the determination as
to which beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05. Notice of Defaults. If a Default with respect to the
Notes occurs and is continuing and if it is known to the Trustee, the Trustee
shall give to each Holder notice of such Default in the manner set forth in TIA
Section 315(b) within 90 days after it occurs. Except in the case of a Default
described in Section 6.01(1) with respect to any Note, the Trustee may withhold
the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b) and (c).
33
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange on which the Notes may be listed. The
Company agrees to notify the Trustee whenever the Notes become listed on any
stock exchange.
SECTION 7.07. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay the Principal of or
interest on any Note.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(3) or (4), the expenses
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.08. The Holders of a majority in aggregate Principal Amount of the Outstanding
Notes (including Additional Notes, if any) may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
34
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, by
resolution of its Board of Directors, a successor Trustee.
Every 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. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Outstanding Notes
(including Additional Notes, if any) may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of a Note
may petition any court of competent jurisdiction for the removal of such Trustee
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1), (2) and (5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the optional provision permitted by
the second sentence of TIA Section 310(b)(9). In determining whether the Trustee
has conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes. When (a) the Company
delivers to the Trustee all Outstanding Notes authenticated and delivered (other
than Notes that have been destroyed, lost or stolen and which have been replaced
or paid) for cancellation, or (b) all Outstanding Notes have become due and
payable and the Company deposits with the Trustee cash sufficient to pay at
Stated Maturity the Principal Amount of all Principal of and interest on
Outstanding Notes, and if in either case the Company pays all other sums payable
hereunder by
35
the Company, then this Indenture shall, subject to Section 7.07, cease to be of
further effect as to all Outstanding Notes. The Trustee shall join in the
execution of a document prepared by the Company acknowledging satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company on Company Request any money held by them for
the payment of any amount with respect to the Notes that remains unclaimed for
two years; provided, however, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company cause to be published once in an Authorized Newspaper or mail to each
such Holder notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed money then remaining will be returned to
the Company. After return to the Company, Holders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Notes; or
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders or to surrender any right or power herein
conferred upon the Company; or
(3) to provide for the issuance of the Exchange Notes as permitted by
this Indenture, which will have terms substantially identical to the other
Outstanding Notes except for the requirement of a Private Placement Legend
and related transfer restrictions under the Securities Act and this
Indenture and as to the applicability of additional interest payable as
provided in Section 2.13, and which will be treated, together with any
other Outstanding Notes, as a single issue of securities; or
(4) to provide for the issuance of Additional Notes as permitted by
this Indenture; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(6) to cure any ambiguity, defect or inconsistency; or
36
(7) to secure the Notes; or
(8) to make any other change that does not adversely affect the rights
of any Noteholder; or
(9) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
the written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Notes (including Additional Notes, if any), the
Company and the Trustee may amend this Indenture or the Notes or may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment or supplemental indenture shall,
without the consent of each Holder of Outstanding Notes:
(1) change the Stated Maturity of the Principal of, or any installment
of Principal or interest on, the Notes, or reduce the Principal Amount
thereof or the rate of interest thereon or any premium payable upon
redemption thereof, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding Notes
(including Additional Notes, if any) the consent of whose Holders is
required for any such amendment or supplemental indenture, or the consent
of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) with respect to the Notes;
(3) modify any of the provisions of this Section, Section 6.04 or
6.07, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or
supplemental indenture, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplemental Indenture under this Section 9.02
becomes effective, the Company shall mail to each Holder a notice briefly
describing the amendment.
SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment or waiver becomes effective, a consent to it or any other
action by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Note or portion of that Note that evidences the same obligation
as the consenting Holder's Note, even if notation of the
37
consent, waiver or action is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Note or portion of the Note if the Trustee receives the notice of revocation
before the Company or an agent of the Company certifies to the Trustee that the
consent of the requisite aggregate Principal Amount of the Notes has been
obtained. After an amendment, waiver or action becomes effective, it shall bind
every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to the Notes. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
SECTION 9.05. Notation on or Exchange of Notes. Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Notes so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 9.06. Trustee to Sign Supplemental, Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment the Trustee shall be entitled to receive, and (subject
to the provisions of Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
SECTION 9.07. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
SINKING FUNDS
SECTION 10.01. No Sinking Funds. The Notes shall not be entitled to
the benefits of a sinking fund.
ARTICLE 11
MISCELLANEOUS
38
SECTION 11.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company: Allergan, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: _________________
if to the Trustee: Xxxxx Fargo Bank, National Association
000 Xxxxxxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxx, Corporate Trust Services
Fax Number 000-000-0000
All notices and communications (other than those sent to Holders) will
be deemed to have been given: (i) at the time delivered by hand, if personally
delivered and (ii) five Business Days after being deposited in the mail, postage
prepaid, if mailed.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder shall be mailed to such
Holder at the Holder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
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.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not received by the addressee.
If the Company mails a notice or communication to the Holders, it
shall mail a copy to the Trustee and the Agents.
39
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 11.03. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Notes. The Company and the Trustee,
the Registrar or the Paying Agent, and anyone else, shall have the protection of
TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 11.06. Separability Clause. 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 11.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Agents may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or
40
Stated Maturity of any Note, or a date for giving notice) is a Legal Holiday,
then (notwithstanding any other provision of this Indenture or of the Notes
other than a provision which specifically states that such provision shall apply
in lieu of this Section) payment of interest or Principal need not be made, or
such other action need not be taken, on such date, but the action shall be taken
on the next succeeding day that is not a Legal Holiday with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or such other date and to the extent applicable no interest, if
any, shall accrue for the intervening period.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 11.11. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 11.12. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.13. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders, any benefits or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 11.14. Multiple 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. One signed copy is enough to prove this
Indenture.
ALLERGAN, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title:Executive Vice President,
---------------------------------
Finance and Business Development,
---------------------------------
Chief Financial Officer
---------------------------------
41
Attest: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President, Assistant General
---------------------------------
Counsel and Assistant Secretary
---------------------------------
TRUSTEE
By: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
Name: /s/ Xxxxx Xxxx
---------------------------
Title: Assistant Vice President
---------------------------
Attest: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
-------------------------
Title: Vice President
-------------------------
42
CGSH Draft of April 10, 2006
EXHIBIT A
FORM OF NOTE
[Insert Global Notes Legend, if applicable to the provisions of the Indenture]
[Insert Private Placement Legend, if applicable pursuant to the provisions of
the Indenture]
ALLERGAN INC.
5.75% SENIOR NOTE DUE 2016
No. _________________ CUSIP: ___________________
Issue Date: ___________________
Principal Amount: ___________________
ALLERGAN INC., a Delaware Corporation, promises to pay to _________________
or registered assigns, the Principal Amount of __________ ($___) on April 1,
2016.
This Note shall bear cash interest at the rate of 5.75% per annum.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side of
this Security.
Dated:
------------------------------
ALLERGAN, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture.
By:
---------------------------------
Authorized Officer
A-1
[FORM OF REVERSE SIDE OF SECURITY]
5.75% SENIOR NOTE DUE 2016
1. INTEREST
This Note shall bear cash interest at the rate of 5.75% per annum. Interest
on this Note shall accrue from _______________, or from the most recent date to
which interest has been paid or provided for. Interest on this Note shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the Regular Record Date
for such interest, which shall be the March 15 or September 15 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date. If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the Persons who are the registered Holders
of the Notes on a subsequent special record date. The Company shall fix the
record date and the payment date. At least 30 days before the record date, the
Company shall mail to the Trustee and to each Holder a notice that states the
record date, the payment date and the amount of interest to be paid. The Company
may pay defaulted interest in any other lawful manner.
If any Interest Payment Date, Redemption Date or Maturity Date of any
of the Notes is not a Business Day, then payment of principal and interest will
be made on the next succeeding Business Day. No interest will accrue on the
amount so payable for the period from such Interest Payment Date, Redemption
Date or Maturity Date, as the case may be, to the date payment is made.
Under certain circumstances the Company may be required to pay
Additional Interest as provided in the Indenture.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, the Company will
make payments at Maturity to Holders who surrender Notes to a Paying Agent to
collect such payments in respect of the Notes. The Company will pay any cash
amounts in money of the United States that at the time of payment is legal
tender for payment of public and private debts. All payments in respect of the
Notes represented by a Global Note (including the payment of the principal of,
premium, if any and interest) shall be made by wire transfer of immediately
available funds to the accounts specified by the Holder of the Global Notes.
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent or Registrar or co-registrar without
notice, other than notice to the Trustee. The Company or any of its Subsidiaries
or any of their Affiliates may act as Paying Agent or Registrar or co-registrar.
The Company may maintain deposit accounts and conduct other banking transactions
with the Trustee in the normal course of business.
A-2
4. INDENTURE
The Company issued the Notes under an Indenture dated as of April 12,
2006 (the "Indenture"), between the Company and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as in effect from time to time
(the "TIA"). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all such
terms, and Noteholders are referred to the Indenture for a statement of those
terms.
The Notes are senior unsecured obligations of the Company of which
$800,000,000 in aggregate principal amount will be initially issued. Subject to
the conditions set forth in the Indenture and without the consent of the
Holders, the Company may issue Additional Notes. All Notes will be treated as a
single class of Notes under the Indenture. The Indenture imposes certain
limitations on, among other things, the ability of the Company to: incur Liens,
enter into Sale and Leaseback Transactions, or consolidate or merge or transfer
or convey all or substantially all of the Company's assets.
5. OPTIONAL REDEMPTION BY THE COMPANY
The Notes are subject to redemption as a whole or in part, at the
option of the Company prior to the Maturity Date as provided in the Indenture.
6. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in fully registered form, without coupons, in
denominations of $2,000 of Principal Amount and integral multiples of $1,000 in
excess thereof. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
7. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
8. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate Principal Amount of the Notes at the time
outstanding and (ii) certain Defaults may be waived with the written consent of
the Holders of a majority in aggregate Principal Amount of the Notes at the time
outstanding. Subject to certain exceptions set forth in the Indenture, without
the consent of any Noteholder, the Company and the Trustee may amend the
Indenture or the Notes (i) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the covenants of the
Company in the Indenture and in the Notes; (ii) to add to the covenants,
agreements and obligations of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company; (iii) to provide
for the issuance of the Exchange Notes as permitted by the Indenture; (iv) to
provide for the issuance of Additional Notes as permitted by the Indenture; (v)
to evidence and provide for the acceptance of
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appointment by a successor Trustee with respect to the Notes; (vi) to cure any
ambiguity, defect or inconsistency; (vii) to secure the Notes; (viii) to make
any other change that does not adversely affect the rights of any Noteholder; or
(ix) to comply with the requirements of the SEC in order to effect or maintain
the qualification of the Indenture under the TIA.
9. DEFAULTS AND REMEDIES
If an Event of Default occurs and is continuing, the Trustee by notice
to the Company, or the Holders of at least 25% in aggregate Principal Amount of
the Outstanding Notes (including Additional Notes, if any), by notice to the
Company and the Trustee, may declare the Principal Amount of the Notes to be
immediately due and payable. Certain events of bankruptcy or insolvency are
Events of Default which will result in Notes being due and payable immediately
upon the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives indemnity or security reasonably satisfactory to
it. Subject to certain limitations, Holders of a majority in aggregate Principal
Amount of the Outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
Default (except a Default in payment of Principal and Interest) if it determines
that withholding notice is in their interests.
10. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
11. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
12. AUTHENTICATION
This Note shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Note.
13. GOVERNING LAW
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
NOTE.
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The Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture which has in it the text of this Note in
larger type. Requests may be made to:
Allergan Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
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ASSIGNMENT FORM
FOR, VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL NOTE OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________
_____________________________________
__________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
__________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________ Attorney to transfer
said Note on the books of the Company with full power of substitution in the
premises.
Dated:
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Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the Note in every particular, without
alteration or enlargement or any change whatever.
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Signature must be guaranteed by a Signature of Signature Guarantor
participant in a recognized signature
guaranty medallion program or other
signature guarantor acceptable to the
Trustee
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT-- _______ Custodian _______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of Under Uniform Gifts to Minors
survivorship and not as Act ________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Certificated Note, or exchanges of a part of another Global
Note or Certificated Note for an interest in this Global Note, have been made:
Principal Amount
Amount of decrease of this Global Note Signature of
in Principal Amount Amount of increase in following such authorized officer
of Principal Amount of decrease (or of Trustee or
Date of Exchange this Global Note this Global Note increase) Custodian
---------------- ------------------- --------------------- ------------------- ------------------
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