Exhibit 4.1
EXECUTION COPY
----------------------------------------------------------
INDENTURE
Dated as of November 19, 2004
4.50 % Senior Notes due 2009
5.25 % Senior Notes due 2014
----------------------------------------------------------
AMONG
GTECH HOLDINGS CORPORATION,
As Issuer
GTECH CORPORATION,
GTECH RHODE ISLAND CORPORATION, and
GTECH LATIN AMERICA CORPORATION
As Guarantors
AND
SUNTRUST BANK,
As Trustee
----------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions...................................................................................1
Section 1.2 Other Definitions.............................................................................8
Section 1.3 Incorporation by Reference of Trust Indenture Act.............................................9
Section 1.4 Rules of Construction.........................................................................9
Section 1.5 Acts of Holders...............................................................................9
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating..............................................................................11
Section 2.2 Restrictive Legends..........................................................................12
Section 2.3 Execution, Authentication and Denominations..................................................13
Section 2.4 Registrar and Paying Agent...................................................................14
Section 2.5 Paying Agent to Hold Money in Trust..........................................................14
Section 2.6 Transfer and Exchange........................................................................15
Section 2.7 Book-Entry Provisions for Global Notes.......................................................16
Section 2.8 Special Transfer Provisions..................................................................17
Section 2.9 Replacement Notes............................................................................20
Section 2.10 Outstanding Notes............................................................................20
Section 2.11 Temporary Notes..............................................................................20
Section 2.12 Cancellation.................................................................................21
Section 2.13 CUSIP Numbers................................................................................21
Section 2.14 Defaulted Interest...........................................................................21
Section 2.15 Issuance of Additional Notes.................................................................21
Section 2.16 Persons Deemed Owners........................................................................22
ARTICLE III
OPTIONAL REDEMPTION
Section 3.1 Right to Redeem; Notices to Trustee..........................................................22
Section 3.2 Partial Redemption...........................................................................22
Section 3.3 Notice of Optional Redemption................................................................23
Section 3.4 Notice of Redemption.........................................................................23
Section 3.5 Effect of Notice of Redemption...............................................................24
Section 3.6 Deposit of Redemption Price..................................................................24
Section 3.7 Notes Redeemed in Part.......................................................................24
ARTICLE IV
COVENANTS
i
Page
----
Section 4.1 Payment of Notes.............................................................................24
Section 4.2 SEC and Other Reports........................................................................24
Section 4.3 Compliance Certificate.......................................................................25
Section 4.4 Further Instruments and Acts.................................................................25
Section 4.5 Existence....................................................................................25
Section 4.6 Maintenance of Office or Agency..............................................................25
Section 4.7 Delivery of Certain Information..............................................................26
Section 4.8 Additional Interest..........................................................................26
Section 4.9 Limitations on Liens.........................................................................26
Section 4.10 Limitation on Sales and Leasebacks...........................................................28
Section 4.11 Notice of Defaults...........................................................................28
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company or Any Guarantor May Merge or Transfer Assets...................................28
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default............................................................................30
Section 6.2 Acceleration.................................................................................31
Section 6.3 Other Remedies...............................................................................32
Section 6.4 Waiver of Past Defaults......................................................................32
Section 6.5 Waiver of Certain Covenants..................................................................32
Section 6.6 Control by Majority..........................................................................32
Section 6.7 Limitation on Suits..........................................................................33
Section 6.8 Rights of Holders to Receive Payment.........................................................33
Section 6.9 Collection Suit by Trustee...................................................................33
Section 6.10 Trustee May File Proofs of Claim.............................................................33
Section 6.11 Priorities...................................................................................34
Section 6.12 Undertaking for Costs........................................................................35
Section 6.13 Waiver of Stay, Extension or Usury Laws......................................................35
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee............................................................................35
Section 7.2 Rights of Trustee............................................................................36
Section 7.3 Individual Rights of Trustee.................................................................38
Section 7.4 Trustee's Disclaimer.........................................................................38
Section 7.5 Notice of Defaults...........................................................................38
Section 7.6 Reports by Trustee to Holders................................................................38
Section 7.7 Compensation and Indemnity...................................................................39
Section 7.8 Replacement of Trustee.......................................................................39
Section 7.9 Successor Trustee by Merger..................................................................40
Section 7.10 Eligibility; Disqualification................................................................40
ii
Page
----
Section 7.11 Preferential Collection of Claims Against Company............................................41
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities; Defeasance.............................................41
Section 8.2 Conditions of Defeasance.....................................................................42
Section 8.3 Application of Trust Money...................................................................43
Section 8.4 Repayment to the Company or Guarantor........................................................43
Section 8.5 Indemnity for U.S. Government Obligations....................................................43
Section 8.6 Reinstatement................................................................................43
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders...................................................................44
Section 9.2 With Consent of Holders......................................................................44
Section 9.3 Compliance with Trust Indenture Act..........................................................45
Section 9.4 Revocation and Effect of Consents, Waivers and Actions.......................................45
Section 9.5 Notation on or Exchange of Securities........................................................45
Section 9.6 Trustee to Sign Supplemental Indentures......................................................45
Section 9.7 Effect of Supplemental Indentures............................................................46
ARTICLE X
GUARANTEES
Section 10.1 Agreement to Guarantee.......................................................................46
Section 10.2 Execution and Delivery of Guarantees.........................................................46
Section 10.3 No Recourse Against Others...................................................................47
Section 10.4 Future Guarantees............................................................................48
Section 10.5 Release of Guarantees........................................................................48
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls.................................................................48
Section 11.2 Notices......................................................................................48
Section 11.3 Communication by Holders with Other Holders..................................................49
Section 11.4 Certificate and Opinion as to Conditions Precedent...........................................50
Section 11.5 Statements Required in Certificate or Opinion................................................50
Section 11.6 Separability Clause..........................................................................50
Section 11.7 Rules by Trustee, Paying Agent and Registrar.................................................50
Section 11.8 Legal Holidays...............................................................................50
Section 11.9 Governing Law................................................................................50
Section 11.10 No Recourse Against Others...................................................................50
Section 11.11 Successors...................................................................................51
Section 11.12 Multiple Originals...........................................................................51
Section 11.13 Waiver of Jury Trial.........................................................................51
iii
Page
----
EXHIBITS
EXHIBIT A: Form of Security..................................................................................A-1
EXHIBIT B: Transfer Certificate..............................................................................B-1
EXHIBIT C: Transfer Certificate..............................................................................C-1
EXHIBIT D: Form of Supplemental Indenture....................................................................D-1
iv
INDENTURE dated as of November 19, 2004 (the "Closing Date") among
GTECH HOLDINGS CORPORATION, a Delaware corporation (the "Company"), GTECH
CORPORATION, a Delaware corporation, GTECH RHODE ISLAND CORPORATION, a Rhode
Island corporation and GTECH LATIN AMERICA CORPORATION, a Delaware corporation,
as guarantors (each, a "Guarantor"), and SUNTRUST BANK, national banking
corporation associated under the laws of the State of Georgia, as trustee (the
"Trustee").
RECITALS
The Company has duly authorized the creation of the issue of two
series of senior notes, one series designated as the 4.50% Senior Notes due
December 1, 2009 (the "4.50% Notes"), and one series designated as the 5.25%
Senior Notes due December 1, 2014 (the "5.25% Notes" and, together with the
4.50% Notes, the "Notes"), and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary (i) to make the Notes, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and (ii) to make this Indenture a
valid agreement of the Company, all in accordance with their respective terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 4.50%
Notes and 5.25% Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"4.50% Notes has the meaning specified in the first paragraph of the
recitals to this instrument.
"5.25% Notes has the meaning specified in the first paragraph of the
recitals to this instrument.
"Additional Interest" means additional interest payable to holders
of Securities (as defined in the Registration Rights Agreement) pursuant to the
Registration Rights Agreement.
"Additional Notes" means an unlimited maximum aggregate principal
amount of either 4.50% Notes or 5.25% Notes (other than the Notes issued on the
date hereof) issued under this Indenture in accordance with Section 2.15 hereof,
which Additional Notes shall be identical to the applicable series of Notes
except for the date of their original issuance.
"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, Co-Registrar, Paying Agent or
authenticating agent.
"Attributable Debt" means, as to any particular lease relating to a
Sale and Leaseback Transaction, the present value of all Lease Rentals required
to be paid by any Guarantor or any Restricted Subsidiary under such lease during
the remaining term thereof (determined in accordance with generally accepted
financial practice using a discount factor equal to the interest rate implicit
in such lease).
"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 one or more resolutions,
certified by an Officer of the Company to have been duly adopted or consented to
by the Board of Directors and to be in full force and effect, and delivered to
the Trustee.
"Business Day" means, when used with respect to any place of payment
for the Notes, means a day other than a Saturday or a Sunday, a legal holiday or
a day on which banking institutions or trust companies in The City of New York
are authorized or obligated by law 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.
"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. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any two Officers.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having an actual or interpolated
maturity comparable to the remaining life of the applicable series of 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 with the remaining life of such series of
Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any redemption
date of a series of Notes, the average of four Reference Treasury Dealer
Quotations for such redemption
2
date, after excluding the highest and the lowest of such Reference Treasury
Dealer Quotations, or if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Assets" means, as of any date of determination, the
total assets of the Company and its Restricted Subsidiaries as determined on a
consolidated basis in accordance with generally accepted accounting principles
as of such date, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Restricted Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee
in Atlanta, Georgia, which office at the date hereof is located at 00 Xxxx
Xxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as a successor Trustee
may designate from time to time by notice to the Holders and the Company).
"Closing Date" shall mean the date first written above.
"Credit Agreement" means the bank revolving credit agreement, dated
as of October 25, 2004, among GTECH Corporation, as borrower, the Company and
the other Guarantors, as guarantors, and the several lenders parties thereto, as
such Credit Agreement may be amended, modified, supplemented, superceded or
refinanced from time to time in accordance with the terms thereof.
"Debt" means with respect to any person, any indebtedness of such
person, whether or not contingent, (i) in respect of borrowed money evidenced by
bonds, notes, debentures or similar instruments, (ii) secured by a mortgage,
pledge, lien, charge, encumbrance or any security interest existing on property
owned by such person, (iii) in respect of the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit actually
issued, or (iv) in respect of any lease of property by such person as lessee
which is reflected in such person's consolidated balance sheet as a capitalized
lease in accordance with generally accepted accounting principles, and also
includes, to the extent not otherwise included, any obligation by such person to
be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Debt of another
person. Items of Debt under (i) through (iii) above shall be included only to
the extent that any such items (other than letters of credit) would appear as a
liability on such person's consolidated balance sheet in accordance with
generally accepted accounting principles.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees, and
their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
3
"Exchange Notes" means any securities of the Company containing
terms identical to the applicable series of Notes (except that such Exchange
Notes shall be registered under the Securities Act, and except that such
Exchange Notes will not contain terms with respect to Additional Interest or
transfer restrictions) that are issued and exchanged for such series of Notes
pursuant to the Registration Rights Agreement and this Indenture in accordance
with Section 2.2.
"Exchange Offer" has the meaning assigned to such term in the
Registration Rights Agreement.
"Funded Debt" means all Debt having a maturity of more than twelve
months from the date as of which the amount thereof is to be determined.
"Global Notes" has the meaning provided in Section 2.1.
"Guarantees" means the guarantees of the Guarantors as endorsed on
each Note authenticated and delivered pursuant to this Indenture and shall
include the Guarantees set forth in Article X of this Indenture and all other
obligations and covenants of the Guarantors contained in this Indenture and the
Notes.
"Guarantors" means (i) each of the parties named as a "Guarantor" in
the first paragraph of this Indenture and (ii) each Person who becomes a
Guarantor pursuant to Section 10.4 of this Indenture, in each case until a
successor replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor. The foregoing sentence shall
likewise apply to any subsequent such successor or successors.
"Holder" or "Securityholder" means a person in whose name a Security
is registered on the applicable Security Register on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including the provisions of
the TIA that are deemed to be a part hereof.
"Lease Rentals" means, for any period, the sum of the rental and
other obligations required to be paid by the lessee under any lease, excluding
any amounts required to be paid by the lessee (whether or not designated as
rental or additional rental) on account of maintenance and repairs, insurance,
taxes and similar charges.
"Mortgage" means a pledge of, or mortgage or other lien on, any Real
Property or on any shares of stock (or other interests in) or Debt of any
Restricted Subsidiary.
"Non-Recourse Debt" means Debt upon the enforcement of which
recourse may be had by the holder(s) thereof only (i) in respect of the Company,
to identified assets of the Company or any Subsidiary and not to the Company or
any Subsidiary personally and (ii) in respect of a Guarantor, to identified
assets of such Guarantor or any Subsidiary and not to such Guarantor or any
Subsidiary personally.
4
"Notes" means any of the Company's 4.50% Senior Notes due December
1, 2009 ,or 5.25% Senior Notes due December 1, 2014, as amended or supplemented
from time to time, issued under this Indenture. For all purposes of this
Indenture, the term "Notes" shall include each series of Notes initially issued
on the Closing Date, any Exchange Notes to be issued and exchanged for any Notes
of a particular series pursuant to the Registration Rights Agreement and this
Indenture and any Additional Notes of a particular series issued after the
Closing Date under this Indenture. For purposes of this Indenture, the 4.50%
Notes, the Exchange Notes thereof, and the Additional Notes thereof, if any,
shall vote together as one series of Notes under this Indenture and the 5.25%
Notes, the Exchange Notes thereof, and the Additional Notes thereof, if any,
shall vote together as one series of Notes under this Indenture, and each of
such series and their respective Additional Votes and Exchange Notes shall each
vote as a separate series of Notes under this Indenture.
"Officer" means the Chairman of the Board of Directors, the Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Chief Financial Officer, the Treasurer or the
Secretary, or any Assistant Treasurer or Secretary of the Company or a
Guarantor, as applicable.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.4 and 11.5, signed in the name of the
Company or the applicable Guarantor, as the case may be, by any two Officers,
and delivered to the Trustee. An Officers' Certificate given pursuant to Section
4.3 shall be signed by an authorized financial or accounting Officer of the
Company or the applicable Guarantor, as the case may be, but need not contain
the information specified in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.4 and 11.5, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or any Guarantor.
"Offshore Global Notes" has the meaning provided in Section 2.1.
"Offshore Physical Notes" has the meaning provided in Section 2.1.
"Person" or "person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.1.
"Principal Amount" or "principal amount" of a Note means the
Principal Amount as set forth on the face of the Note.
"Private Placement Legend" means the legend set forth on the Notes
in the form of the first legend set forth in Section 2.2.
"Purchase Agreement" means the Purchase Agreement, dated November ,
2004, among the Company, the Guarantors and the initial purchasers named
therein.
5
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Quotation Agent" means the Reference Treasury Dealer appointed by
the Company.
"Real Property" means any real property, and any building, structure
or other facility thereon, located in the United States, its territories and
possessions, owned or leased by the Company or any Subsidiary of the Company,
the gross book value (without deduction of any depreciation reserves) of which
on the date as of which the determination is being made exceeds one percent (1%)
of Consolidated Assets, other than any such real property, which if not owned or
leased by the Company or any Subsidiary, in the opinion of the Company's Board
of Directors, would not have a material adverse effect on the business conducted
by the Company and its Subsidiaries as an entirety.
"Redemption Date" or "redemption date" shall mean the date specified
for redemption of the applicable series of Notes in accordance with the terms of
such series of Notes and this Indenture.
"Redemption Price" or "redemption price," when used with respect to
any Notes of a particular series to be redeemed, means the price fixed for such
redemption pursuant to Article III of this Indenture and paragraph 5 of the
Notes.
"Reference Treasury Dealer" means each of Banc of America Securities
LLC and Citigroup Global Markets Inc., or their respective successors, and two
other primary U.S. Government securities dealers in The City of New York
selected by the Company. If Banc of America Securities LLC or Citigroup Global
Markets Inc. shall cease to be a primary U.S. Government securities dealer in
The City of New York (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
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 5:00 p.m., New York
City time, on the third Business Day preceding the redemption date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated November 19, 2004, among the Company, the Guarantors and the
initial purchasers named therein, as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such
6
person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Restricted Subsidiary" means any direct or indirect Subsidiary of
the Company that generates five percent (5%) or more of the Company's
consolidated revenue or income or that has total assets equal to or greater than
five percent (5%) of the Company's total consolidated assets. In addition, the
Board of Directors of the Company may designate any other Subsidiary as a
Restricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Sale and Leaseback Transaction" means any arrangement with any
lender or investor (not including the Company or any Restricted Subsidiary) or
to which any such lender or investor is a party, providing for the leasing by
the Company or any such Restricted Subsidiary for a period, including renewals,
in excess of three (3) years of any Real Property that has been or is to be sold
or transferred more than 360 days after the completion of construction and
commencement of full operation of such Real Property by the Company or any such
Restricted Subsidiary to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of
such Real Property.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Notes and the Guarantees.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to
time.
"Shelf Registration Statement" has the meaning assigned to such term
in the Registration Rights Agreement.
"Stated Maturity" means December 1, 2009 with respect to the 4.50%
Notes and December 1, 2014 with respect to the 5.25% Notes.
"Subsidiary" means any person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by, (i) with respect to the Company, the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries, and (ii) with
respect to any Guarantor, such Guarantor or by one or more Subsidiaries or by
such Guarantor and one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual or equivalent yield to maturity or
interpolated (on a day-count basis) of the Comparable Treasury Issue, calculated
on the third Business Day preceding such
7
Redemption Date using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Redemption Date.
"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. The foregoing sentence shall likewise apply to any subsequent such
successor or successors; provided, however, that if at any time there is more
than one such Person, "Trustee" shall mean each such Person and as used with
respect to the Securities of any series shall mean the Trustee with respect to
the Securities of such series.
"U.S. Global Note" has the meaning provided in Section 2.1.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the applicable series of Notes, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Physical Notes" means any series of Notes issued in the form
of permanent certificated Notes in registered form in substantially the form set
forth in Exhibit A.
"Voting Stock" of a person means Capital Stock of such person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect the board of directors, managers or
trustees of such person (irrespective of whether or not at the time Capital
Stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
Section 1.2 Other Definitions.
Term: Defined in Section:
----- -------------------
"Act"......................................................... 1.5(a)
"Agent Members"............................................... 2.7
"covenant defeasance option".................................. 8.1(b)
"Event of Default"............................................ 6.1
"legal defeasance option"..................................... 8.1(b)
"Legal Holiday"............................................... 11.8
8
Term: Defined in Section:
----- -------------------
"Notice of Default"........................................... 6.1
"Paying Agent"................................................ 2.4
"Registrar"................................................... 2.4
"Rule 144A Information"....................................... 4.7
"Security Register"........................................... 2.4
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Notes means the Company or any other obligor
on the Notes and on the Guarantees means any Guarantor or any other
obligor on the Guarantees.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by a TIA reference to another statute or defined by an SEC rule
have the meanings assigned to them by such definitions.
Section 1.4 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
(5) words in the singular include the plural, and words in the
plural include the singular.
Section 1.5 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
9
or instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company or the Guarantors. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee, the Company and the Guarantors, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the applicable
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or any Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company shall solicit from the Holders of a series of
Notes any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board Resolution,
fix in advance a record date with respect to either or both series of Notes for
the determination of Holders of such series entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date with respect to
either or both series of Notes is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Notes of record of such series of
Notes at the close of business on such record date shall be deemed to be Holders
of such series of Notes for the purposes of determining whether Holders of the
requisite proportion of outstanding Securities of such series have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose, the outstanding Securities
of such series shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders of such series on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
10
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating. The Notes of each series and the
Trustee's certificate of authentication for each series of Notes shall be
substantially in the form annexed hereto as Exhibits A-1 and A-2 with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange agreements to which the Company
is subject or usage. The Company shall approve the form of the Notes and any
notation, legend or endorsement on the Notes. Each Note shall be dated the date
of its authentication.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes for each series in
registered form, substantially in the form set forth in Exhibit A (the "U.S.
Global Notes"), registered in the name of the nominee of the Depositary,
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the U.S. Global Notes for each series may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, in accordance with the
instructions given by the Holder thereof, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Notes for each series in registered form substantially in the form set
forth in Exhibit A (the "Offshore Global Notes"), registered in the name of the
nominee of the Depositary, deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Offshore Global
Notes for each series may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depositary
or its nominee, as hereinafter provided.
Notes issued pursuant to Section 2.7 in exchange for interests in
the Offshore Global Notes shall be in the form of permanent certificated Notes
for such series in registered form substantially in the form set forth in
Exhibit A (the "Offshore Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Notes
and the Offshore Global Notes are sometimes referred to herein as the "Global
Notes."
The definitive Notes for a series shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner
11
permitted by the rules of any securities exchange on which such Notes may be
listed, all as determined by the Officers executing such Notes, as evidenced by
their execution of such Notes.
Section 2.2 Restrictive Legends. Unless and until a Note is
exchanged for an Exchange Note or sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, (i) the
U.S. Global Notes and U.S. Physical Notes shall bear the legend set forth below
on the face thereof and (ii) the Offshore Physical Notes and Offshore Global
Notes shall bear the legend set forth below on the face thereof until at least
the 41st day after the Closing Date and receipt by the Company and the Trustee
of a certificate substantially in the form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. 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 NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2)
AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF
THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED
TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear
the following legend on the face thereof:
12
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY 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 NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.8 OF THE INDENTURE.
Section 2.3 Execution, Authentication and Denominations. Subject to
applicable law, the aggregate principal amount of each series of Notes which may
be authenticated and delivered under this Indenture is unlimited. The Notes
(with the Guarantees endorsed thereon) shall be executed on behalf of the
Company by two Officers of the Company. The signature of these Officers on the
Notes and the Guarantors and the Guarantees may be by facsimile or manual
signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee or authenticating agent authenticates the Note,
the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue each series of Notes in the
aggregate principal amount specified in such Company Order; provided that the
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company in connection with such authentication of such series of
Notes. Such Company Order shall specify the amount of such Notes to be
authenticated and the date on which the original issue of such Notes is to be
authenticated.
The Trustee may appoint an authenticating agent to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such authenticating agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
13
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
Section 2.4 Registrar and Paying Agent. The Company shall maintain
an office or agency where Notes of either or both series may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
where Notes of either or both series may be presented for payment (the "Paying
Agent") and an office or agency where notices and demands to or upon the Company
in respect of either or both series of Notes and this Indenture may be served,
which shall be in the Borough of Manhattan, The City of New York. The Company
shall cause the Registrar to keep a register of the Notes of each series and of
their transfer and exchange (the "Security Register"). The Security Register for
each series of Notes shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Company may have one
or more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-Registrar, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, Paying
Agent, authenticating agent and agent for service of notice and demands. The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders of each
series of Notes and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee as of
each Regular Record Date and at such other times as the Trustee may reasonably
request the names and addresses of Holders of such series of Notes as they
appear in the Security Register of such series of Notes, including the aggregate
principal amount of Notes held by each Holder.
Section 2.5 Paying Agent to Hold Money in Trust. Not later than
10:00 a.m. (New York City time) on each due date of the principal, premium, if
any, and interest (including Additional Interest) on any series of Notes, the
Company shall deposit with the Paying Agent money in immediately available funds
sufficient to pay such principal, premium, if any, and interest (including
Additional Interest) so becoming due. The Company shall require each Paying
Agent other than the Trustee to agree in writing that such Paying Agent shall
hold in trust for the benefit of the Holders of each applicable series of Notes
or the Trustee all money held by the Paying Agent for the payment of principal
of, premium, if any, and interest
14
(including Additional Interest) on such Notes (whether such money has been paid
to it by the Company or any Guarantor), and such Paying Agent shall promptly
notify the Trustee of any default by the Company (or the Guarantors) in making
any such payment. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. Upon doing so,
the Paying Agent shall have no further liability for the money so paid over to
the Trustee. If the Company or any Subsidiary of the Company or any Affiliate of
any of them acts as Paying Agent, it will, on or before each due date of any
principal of, premium, if any, or interest on any series of Notes, segregate and
hold in a separate trust fund for the benefit of the Holders of such series of
Notes a sum of money sufficient to pay such principal, premium, if any, or
interest so becoming due until such sum of money shall be paid to such Holders
of the applicable series of Notes or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee of its action or failure to act.
Section 2.6 Transfer and Exchange. The Notes are issuable only in
registered form. A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the applicable
Security Register. Prior to the registration of any transfer by a Holder of a
series of Notes as provided herein, the Company, the Trustee, and any agent of
the Company shall treat the person in whose name such Note is registered as the
owner thereof for all purposes whether or not the Note shall be overdue, and
neither the Company, the Trustee, nor any such agent shall be affected by notice
to the contrary. Furthermore, any Holder of a Global Note of any series shall,
by acceptance of such Global Note, agree that transfers of beneficial interests
in such Global Note may be effected only through a book entry system maintained
by the Holder of such Global Note (or its agent) and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry. When Notes of a series are presented to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Notes of the same series and of other authorized
denominations (including an exchange of Notes for Exchange Notes of the same
series), the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met (including that such
Notes are duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and Registrar duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the
Holder of such series of Notes); provided that no exchanges of Notes of a series
for Exchange Notes of that series shall occur until a Registration Statement
with respect to such series of Notes shall have been declared effective by the
SEC and that any Notes of a series that are exchanged for Exchange Notes of that
series shall be cancelled by the Trustee. To permit registrations of transfers
and exchanges, the Company shall execute, the Guarantors shall endorse and the
Trustee shall authenticate Notes of a series at the Registrar's request. No
service charge shall be made for any registration of transfer or exchange or
redemption of any series of Notes, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or other similar
governmental charge
15
payable upon exchanges pursuant to Section 2.11, 3.7 or 9.5, which shall be paid
by the Company).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange a Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of such
series of Notes selected for redemption under Section 3.2 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Note of such series so selected for redemption in whole or in
part, except the unredeemed portion of any Note of such series being redeemed in
part.
Section 2.7 Book-Entry Provisions for Global Notes.
(a) The U.S. Global Notes of each series and Offshore Global Notes
of each series initially shall (i) be registered in the name of the Depositary
for such Global Notes or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set forth
in Section 2.2.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary, or the Trustee as its custodian, or under
such Global Note, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing 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 impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in Global Notes may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 2.8. In addition, U.S. Physical Notes and Offshore
Physical Notes of a particular series shall be transferred to the applicable
beneficial owners in exchange for their beneficial interests in the applicable
U.S. Global Notes or the applicable Offshore Global Notes, as the case may be,
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such series of U.S. Global Notes or such series of
Offshore Global Notes, as the case may be, 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 of such notice or cessation, (ii)
an Event of Default, with respect to such series of Notes, has occurred and is
continuing and the Registrar has received a request from the Depositary, (iii)
the Company has provided the Trustee with written notice that, with respect to
such series of Notes, it has decided to discontinue use of the system of
book-entry transfers through the Depositary or any successor Depositary or (iv)
in accordance with the rules and procedures of the Depositary and the provisions
of Section 2.8.
16
(c) Any beneficial interest in one of the Global Notes of a
particular series that is transferred to a person who takes delivery in the form
of an interest in another Global Note of that series will, upon transfer, cease
to be an interest in such Global Note and become an interest in such other
Global Note and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial interests in
such other Global Note for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a Global Note of a particular series to the applicable beneficial
owners pursuant to paragraph (b) of this Section 2.7, the Registrar shall
reflect on its books and records the date and a decrease in the principal amount
of the applicable Global Note in an amount equal to the principal amount of the
beneficial interest in such Global Note to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes or Offshore Physical Notes, as the case may be, of like tenor and
amount.
(e) In connection with the transfer of the U.S. Global Notes or the
Offshore Global Notes of a particular series, in whole, to the applicable
beneficial owners pursuant to paragraph (b) of this Section 2.7, the applicable
U.S. Global Notes or the applicable Offshore Global Notes, as the case may be,
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner of such series identified by the Depositary in exchange for its
beneficial interest in such U.S. Global Notes or such Offshore Global Notes, as
the case may be, an equal aggregate principal amount of U.S. Physical Notes or
Offshore Physical Notes, as the case may be, of like tenor and amount and of
authorized denominations.
(f) Any U.S. Physical Note of a particular series delivered in
exchange for an interest in the applicable U.S. Global Notes pursuant to
paragraph (b), (d) or (e) of this Section 2.7 shall, except as otherwise
provided by paragraph (e) of Section 2.8, bear the legend regarding transfer
restrictions applicable to the U.S. Physical Note set forth in Section 2.2.
(g) Any Offshore Physical Note delivered in exchange for an interest
in the applicable Offshore Global Notes pursuant to paragraph (b), (d) or (e) of
this Section 2.7 shall, except as otherwise provided by paragraph (e) of Section
2.8, bear the legend regarding transfer restrictions applicable to the Offshore
Physical Note set forth in Section 2.2.
(h) The Holder of a Global Note of a particular series may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which such
Holder is entitled to take under this Indenture or such Notes.
Section 2.8 Special Transfer Provisions. Unless and until a Note is
exchanged for an Exchange Note of such series or is sold in connection with an
effective Registration Statement pursuant to the Registration Rights Agreement,
the following provisions shall apply:
(a) [Intentionally Omitted.]
17
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note to a QIB
(excluding Non-U.S. Persons):
(i) If such Note to be transferred consists of (x) either
Offshore Physical Notes or U.S. Physical Notes, in each case, prior
to the removal of the Private Placement Legend, the Registrar shall
register the transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on the form of Note
of such series stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it
is purchasing such Note for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A and is
aware that the sale is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company and the Guarantors as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in the U.S. Global Notes of
such series, the transfer of such interest may be effected only
through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Note to be transferred consists of U.S. Physical Notes, upon receipt
by the Registrar of the documents referred to in paragraph (i) above
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
applicable U.S. Global Notes in an amount equal to the principal
amount of the U.S. Physical Notes to be transferred, and the Trustee
shall cancel the U.S. Physical Notes so transferred.
(c) Transfers of Interests in the Offshore Global Notes or Offshore
Physical Notes. The following provisions shall apply with respect to any
transfer of interests in Offshore Global Notes or Offshore Physical Notes:
(i) prior to the removal of the Private Placement Legend from
the Offshore Global Notes or Offshore Physical Notes pursuant to
Section 2.2, the Registrar shall refuse to register such transfer
unless such transfer complies with Section 2.8(b) or Section 2.8(d),
as the case may be, and
(ii) after such removal, the Registrar shall register the
transfer of any such Note without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Note to be transferred is a U.S. Physical
Note or an interest in U.S. Global Notes,
18
upon receipt of a certificate substantially in the form of Exhibit C
hereto from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent Member holding
a beneficial interest in the U.S. Global Notes of a particular
series, upon receipt by the Registrar of (x) the documents, if any,
required by paragraph (i) and (y) instructions in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the applicable U.S. Global Notes in an amount
equal to the principal amount of the beneficial interest in the
applicable U.S. Global Notes to be transferred, and (b) if the
proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount
of the applicable Offshore Global Notes in an amount equal to the
principal amount of the applicable U.S. Physical Notes or the U.S.
Global Notes, as the case may be, to be transferred, and the Trustee
shall cancel the applicable U.S. Physical Note, if any, so
transferred or decrease the amount of the applicable U.S. Global
Notes.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend on the terms
provided herein, the Registrar shall deliver Notes of the same series that do
not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall
deliver only Notes of the same series that bear the Private Placement Legend
unless (i) the Private Placement Legend is no longer required by Section 2.2,
(ii) the requested transfer is after the time period referred to in Rule 144(k)
under the Securities Act or (iii) there is delivered to the Registrar an Opinion
of Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions on transfer of such Note set forth in
this Indenture. In connection with any transfer of Notes, each Holder agrees by
its acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.7 or this Section 2.8. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
19
Section 2.9 Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Holder claims that a Note has been lost, destroyed or
wrongfully taken, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a bona fide purchaser, the Company shall
issue and the Trustee shall authenticate a replacement Note of the same series
of like tenor and principal amount and bearing a number not contemporaneously
outstanding; provided that the requirements of this Section 2.9 are met. If
required by the Trustee or the Company, an indemnity bond must be furnished that
is sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Note is replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee in replacing a Note. In case any such mutilated, lost,
destroyed or wrongfully taken Note has become or is about to become due and
payable, the Company in its discretion may pay such Note instead of issuing a
new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
Section 2.10 Outstanding Notes. Each series of Notes outstanding at
any time will consist of all Notes that have been authenticated by the Trustee
except for those cancelled by it, those delivered to it for cancellation and
those described in this Section 2.10 as not outstanding.
If a Note is replaced pursuant to Section 2.9, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date of such series of Notes money sufficient to
pay Notes of that series payable on that date, then on and after that date such
Notes cease to be outstanding and interest on them shall cease to accrue.
A Note does not cease to be outstanding because the Company or one
of its Affiliates holds such Note, provided, however, that in determining
whether the Holders of the requisite principal amount of the outstanding Notes
of such series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes of such series owned by the Company or the
Guarantors or any Affiliate of the Company or any Guarantor 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 of such series
which a Responsible Officer of the Trustee has actual knowledge to be so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
may be regarded as outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Notes and that
the pledgee is not the Company or any Guarantor or any Affiliate of the Company
or any Guarantor.
Section 2.11 Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and execute and the Trustee shall authenticate
temporary Notes of the same series. Temporary Notes shall be substantially in
the form of definitive Notes
20
but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Notes, as
evidenced by their execution of such temporary Notes. If temporary Notes are
issued, the Company will cause definitive Notes of the same series to be
prepared without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes of the same
series upon surrender of the temporary Notes at the office or agency of the
Company designated for such purpose pursuant to Section 4.6 without charge to
the Holder. Upon surrender for cancellation of any one or more temporary Notes
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Notes of the same series
of authorized denominations. Until so exchanged, the temporary Notes shall be
entitled to the same benefits under this Indenture as definitive Notes of the
same series.
Section 2.12 Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for transfer, exchange, payment or cancellation and shall dispose of them in
accordance with its normal procedure.
Section 2.13 CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and the Company
and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders of the applicable
series of Notes; provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on such Notes or as contained in any notice of redemption or exchange and that
reliance may be placed only on the other identification numbers printed on such
Notes. The Company shall promptly notify the Trustee in writing of any change in
"CUSIP", "CINS" or "ISIN" numbers for the applicable series of Notes.
Section 2.14 Defaulted Interest. If the Company defaults in a
payment of interest on any series of Notes, it shall pay, or shall deposit with
the Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders of such series of Notes on a
subsequent special record date. A special record date, as used in this Section
2.14 with respect to the payment of any defaulted interest, shall mean the 15th
day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder of such
series of Notes and to the Trustee a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.15 Issuance of Additional Notes. The Company may issue
Additional Notes under this Indenture. The Notes issued on the Closing Date and
any Additional Notes of the same series subsequently issued shall be treated as
a single class for all purposes under this Indenture.
21
Section 2.16 Persons Deemed Owners. Prior to due presentment of a
Security 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 Security is
registered as the owner of such Security for the purpose of receiving payment of
the Principal Amount of the Security or the payment of any Redemption Price, in
respect thereof, and accrued interest and Additional Interest thereon, for all
purposes whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee and any of their respective agents shall be affected by
notice to the contrary.
ARTICLE III
OPTIONAL REDEMPTION
Section 3.1 Right to Redeem; Notices to Trustee. (a) Optional
Redemption. The Notes of each series will be redeemable, at the option of the
Company, in whole at any time or in part from time to time prior to the Stated
Maturity of such series, on at least 30 days' but no more than 60 days' prior
written notice mailed to the Holders of the Notes of such series to be redeemed
in accordance with Section 3.3. In addition, notice of any such optional
redemption will be published as described in Section 3.3 below no later than 30
days prior to the redemption date. The redemption price of such Notes will be
equal to the greater of (1) 100% of the principal amount of such Notes to be
redeemed and (2) the sum, as determined by the Quotation Agent, of the present
values of the principal amount of such Notes and the remaining scheduled
payments of interest on such Notes to be redeemed (exclusive of interest accrued
to the redemption date), in each case discounted from their respective scheduled
payment dates to the redemption date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis
points in the case of 4.50% Notes and the Treasury Rate plus 20 basis points in
the case of the 5.25% Notes, plus, in each case, accrued and unpaid interest on
the principal amount being redeemed to the redemption date. The Trustee shall be
entitled to rely on the Quotation Agent's determination of the redemption price
of such series of Notes.
(b) Notice to Trustee. If the Company elects to redeem Notes of a
particular series pursuant to this Section 3.1, it shall notify the Trustee, on
at least 65 days' prior written notice, of the Redemption Date, the Principal
Amount of Notes to be redeemed and the Redemption Price.
If money sufficient to pay the redemption price of and accrued
interest on the series of Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Trustee or Paying Agent on or before the
Redemption Date in accordance with the provisions of this Article III, then on
and after the Redemption Date, interest will cease to accrue on such series of
Notes (or such portion thereof) called for Redemption. If any Redemption Date is
not a Business Day, the Company will pay the redemption price on the next
Business Day without any interest or other payment due to the delay.
Section 3.2 Partial Redemption. If the Company redeems the Notes of
any series in part pursuant to this Article III, the Trustee shall select the
Notes of such series to be
22
redeemed on a pro rata basis or by lot or by such other method that the Trustee
in its sole discretion deems fair and appropriate. The Trustee shall make the
selection at least 30 days but not more than 60 days before the Redemption Date
from outstanding Notes of such series not previously called for redemption. No
Notes in principal amounts of $1,000 or less will be redeemed in part. Notes and
portions of them the Trustee selects shall be in principal amounts of $1,000 or
an integral multiple of $1,000. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company promptly of the Notes or portions of Notes to
be redeemed.
Section 3.3 Notice of Optional Redemption. If the Company elects to
exercise its right to redeem all or some of the Notes pursuant to this Article
III, the Company or the Trustee (at the written direction of the Company) shall
mail a notice of such redemption to each Holder of a Note that is to be redeemed
not less than 30 days and not more than 60 days before the Redemption Date to
the Holders' last known addresses appearing on the Security Register. In
connection with providing notice pursuant to this Section 3.3, the Company shall
issue a press release and publish a notice containing information regarding the
redemption of the Notes in a newspaper in general circulation in The City of New
York or shall publish such information on the Company's web site or through
other such public media as in general use at the time.
Section 3.4 Notice of Redemption. The Company shall mail the notice
of redemption required under Section 3.3 by first-class mail, postage prepaid,
to each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) if fewer than all the outstanding Notes are to be
redeemed, the certificate numbers, if any, and Principal Amounts of
the particular Notes to be redeemed;
(5) that, unless the Company defaults in making payment of
such Redemption Price, interest on Notes called for redemption will
cease to accrue on and after the Redemption Date; and
(6) the CUSIP number of the Notes to be redeemed.
At the Company's written request, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense and specifying
the same information set forth in this Section 3.4, provided that the Company
makes such request at least three Business Days prior to the date by which such
notice of redemption must be given to Holders in accordance with Section 3.3.
23
Section 3.5 Effect of Notice of Redemption. Once notice of
redemption is given, Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice. Upon surrender
to the Paying Agent, such Notes shall be paid at the Redemption Xxxxx stated in
the notice, together with accrued and unpaid interest up to but not including
the Redemption Date and Additional Interest, if any, thereon.
Section 3.6 Deposit of Redemption Price. Prior to 10:00 a.m. (New
York City time) on the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price of all Notes to be redeemed on that date, together with
accrued and unpaid interest up to but not including the Redemption Date and
Additional Interest, if any, thereon, other than Notes or portions of Notes
called for redemption that on or prior thereto have been delivered by the
Company to the Trustee for cancellation.
Section 3.7 Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall execute, the Guarantors shall endorse and
the Trustee shall authenticate and deliver to the Holder a new Note of the same
series in an authorized denomination equal in Principal Amount to the unredeemed
portion of the Note surrendered.
Article IV
COVENANTS
Section 4.1 Payment of Notes. The Company shall promptly make all
payments in respect of the Notes on the dates and in the manner provided in such
Notes or pursuant to this Indenture. Any amounts to be given to the Trustee or
Paying Agent shall be deposited with the Trustee or Paying Agent by 10:00 a.m.
(New York City time) by the Company. Interest installments, Principal Amount,
premium, if any, Redemption Price, Additional Interest, if any, and interest, if
any, due on overdue amounts shall be considered paid on the applicable date due
if on such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay interest on
overdue amounts at the rate per annum set forth in paragraph 1 of the applicable
series of Notes, compounded semiannually, which interest shall accrue from the
date such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in addition to the continued accrual of interest on the
applicable series of Notes.
Section 4.2 SEC and Other 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
24
or 15(d) of the Exchange Act. In the event the Company is at any time no longer
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements.
In addition, the Company shall comply with the other provisions of
TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on an Officers' Certificates).
Section 4.3 Compliance Certificate. The Company and the Guarantors
shall deliver to the Trustee within 90 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending on February 26, 2005) an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company or the Guarantors are in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and if the Company or the Guarantors shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
Section 4.4 Further Instruments and Acts. Upon request of the
Trustee, the Company and the Guarantors 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 4.5 Existence. Subject to Article V of this Indenture, the
Company and the Guarantors will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and the
rights (whether pursuant to charter, partnership certificate, agreement, statute
or otherwise), licenses and franchises of the Company and each Restricted
Subsidiary; provided that the Company and the Guarantors shall not be required
to preserve any such right, license or franchise, or the existence of any
Restricted Subsidiary, if the maintenance or preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole.
Section 4.6 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar and Paying Agent where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer, exchange or redemption and where notices and demands to or upon the
Company or any Guarantor in respect of the Notes and this Indenture
25
may be served. The Corporate Trust Office shall initially be such office or
agency for all of the aforesaid purposes. The Company shall give prompt written
notice to the Trustee of the location, and of any change in the location, of any
such office or agency (other than a change in the location of the office of the
Trustee). If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes.
Section 4.7 Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Notes, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder or any beneficial owner of Notes, or to a prospective purchaser of
any such security designated by any such Holder, as the case may be, to the
extent required to permit compliance by such Holder or beneficial owner with
Rule 144A under the Securities Act in connection with the resale of any such
security. "Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act or any successor
provisions. Whether a person is a beneficial owner shall be determined by the
Company to the Company's reasonable satisfaction.
Section 4.8 Additional Interest. If at any time Additional Interest
becomes payable by the Company and the Guarantors pursuant to the Registration
Rights Agreement, the Company shall promptly deliver to the Trustee a
certificate to that effect and stating (i) the amount of such Additional
Interest that is payable and (ii) the date on which such Additional Interest is
payable pursuant to the terms of the Registration Rights Agreement. Unless and
until a Responsible Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no Additional Interest is payable. If
the Company or any Guarantor has paid Additional Interest directly to the
persons entitled to such amounts, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.
Section 4.9 Limitations on Liens.
The Company will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume or guarantee any Debt secured by a Mortgage,
without providing that the Notes of each series shall be secured equally and
ratably with (or prior to) such secured Debt, so long as such secured Debt shall
be so secured, unless, after giving effect thereto, the aggregate amount of all
such Debt secured by a Mortgage plus all Attributable Debt of the Company and
its Restricted Subsidiaries in respect of Sale and Leaseback Transactions (other
than such Sale and Leaseback Transactions the net proceeds of which are applied
to retire Notes or Funded Debt or acquire assets in the ordinary course of
business under Section 4.10(ii)) would not exceed fifteen percent (15%) of
Consolidated Assets; provided, however, that this section shall not apply
26
to, and there shall be excluded from any computation of all Debt secured by a
Mortgage under this section, Debt secured by:
(i) Mortgages existing on the execution date of this Indenture;
(ii) Mortgages of any Person existing at the time such Person
becomes a Restricted Subsidiary or obligor under this Indenture and that
are not incurred in contemplation of either such event;
(iii) Mortgages in favor of the Company or a Restricted Subsidiary
by a Restricted Subsidiary;
(iv) Mortgages (including the assignment of moneys due or to become
due thereon) in favor of the United States of America, any state thereof
or any foreign government, or any agency, department or other
instrumentality thereof, to secure progress, advance or other payments
pursuant to any contract or provision of any statute;
(v) Mortgages (A) existing at the time of the acquisition (including
acquisition through merger or consolidation) of the Real Property, shares
of stock (or other interests) or Debt subject to such Mortgage that are
not incurred in contemplation of any such events or (B) granted to secure
(1) the payment of all or any part of the purchase price, construction
cost or development cost of the Real Property, shares of stock (or other
interests) or Debt subject to such Mortgage or (2) any Debt incurred for
the purpose of financing all or any part of the purchase price or
construction cost or development cost of the Real Property, shares of
stock (or other interests) or Debt subject to such Mortgage prior to, at
the time of or within 360 days after the acquisition or the completion of
any such construction or development thereof;
(vi) Mortgages incurred or deposits made to secure the performance
of tenders, statutory obligations, surety bonds, bids, performance bonds
and other similar obligations;
(vii) Mortgages incidental to the normal conduct of the business of
the Company or any Restricted Subsidiary or the ownership of their
properties or assets and that are not incurred in connection with the
incurrence of Debt and that do not in the aggregate materially impair the
use of such property or assets in the operation of the business of the
Company and its Subsidiaries, taken as a whole, or the value of such
property or assets for the purpose of such business;
(viii) Mortgages created by or resulting from any litigation or
legal proceeding that is effectively stayed while the underlying claims
are being contested in good faith by appropriate proceedings and with
respect to which the Company or such Subsidiary has established adequate
reserves in accordance with generally accepted accounting principles;
(ix) any extension, renewal or refinancing (or successive
extensions, renewals or refinancings), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (i) to (viii), inclusive;
provided, however, that (A) such extension, renewal or
27
refinancing Mortgage shall be limited to all or a part of the same Real
Property, shares of stock (or other interests) or Debt that secured the
Mortgage extended, renewed or refinanced (plus improvements on such Real
Property) and (B) the principal amount of Debt secured by such Mortgage is
not increased to an amount exceeding the sum of the principal amount of
the Debt immediately prior to such extension, renewal or refinancing and
any premium, accrued and unpaid interest and capitalized interest payable
on the previous amount; and
(x) Mortgages for taxes, assessments, governmental charges or levies
in respect of taxes either not yet due and payable or that are being
contested in good faith and by appropriate proceedings and with respect to
which the Company or such Subsidiary has established adequate reserves in
accordance with generally accepted accounting principles.
Section 4.10 Limitation on Sales and Leasebacks.
The Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into a Sale and Leaseback Transaction unless either:
(i) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage on the Real Property to be leased back in an amount
equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing the Notes pursuant to
Section 4.9, or
(ii) the Company or such Restricted Subsidiary within 180 days after
the sale or transfer shall have been made by the Company or such
Restricted Subsidiary, applies an amount equal to the net proceeds of the
sale or transfer of the Real Property sold and leased back pursuant to
such Sale and Leaseback Transaction to (A) the retirement of Notes or
Funded Debt of the Company or any of its Restricted Subsidiaries and/or
(B) the acquisition of assets (other than current assets) to be used in
the ordinary course of business of the Company or such Restricted
Subsidiary, as the case may be.
Section 4.11 Notice of Defaults. In the event that any Officer
becomes aware of any Default or Event of Default, the Company shall promptly
deliver to the Trustee an Officers' Certificate specifying such Default or Event
of Default.
Article V
SUCCESSOR CORPORATION
Section 5.1 When Company or Any Guarantor May Merge or Transfer
Assets. (a) Neither the Company or any of the Guarantors shall consolidate with
or merge with or into any other person or convey, transfer or lease its
properties and assets substantially as an entirety to any other person, unless:
(i) (1) the Company or such Guarantor, as the case may be, shall be
the surviving corporation or (2) the person (if other than the Company or
such Guarantor, as
28
the case may be) formed by such consolidation or into which the Company or
such Guarantor, as the case may be, is merged or the person which acquires
by conveyance, transfer or lease the properties and assets of the Company
or such Guarantor, as the case may be, substantially as an entirety (A)
shall be organized and validly existing under the laws of the United
States or any state thereof or the District of Columbia and (B) 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 or the Guarantors under the Securities and this
Indenture;
(ii) immediately after giving effect to the transaction, no Default
or Event of Default would occur or be continuing; and
(iii) the Company or such Guarantor, as applicable, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with
this Article 5, that all conditions precedent herein provided for relating
to such transaction have been satisfied and the supplemental indenture
will constitute the legally valid and binding obligation of such successor
person, enforceable against such person in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium, or other
laws relating to or affecting creditors' rights and by general principles
of equity.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company, any Guarantor or another Subsidiary), which, if such
assets were owned by the Company or such Guarantor, as the case may be, would
constitute all or substantially all of the properties and assets of the Company
or such Guarantor, as the case may be, shall be deemed to be the conveyance,
transfer or lease of its properties or assets substantially as an entirety of
the Company or such Guarantor, as the case may be.
The successor person formed by such consolidation or into which the
Company or such Guarantor, as the case may be, is merged or the successor person
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or such
Guarantor, as the case may be, under this Indenture with the same effect as if
such successor had been named as the Company or such Guarantor, as the case may
be, herein; and thereafter, except in the case of a lease, the Company or such
Guarantor, as the case may be, shall be discharged from all obligations and
covenants under this Indenture and the Securities. Subject to Section 9.6, the
Company, the Guarantors, the Trustee and the successor person shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor person and such discharge and release of the Company.
29
Article VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. Any of the following events will
constitute an "Event of Default" for the 4.50% Notes or the 5.25% Notes, as
applicable:
(a) the Company defaults in the payment of interest or Additional
Interest, if any, payable on any Note of a particular series when the same
becomes due and payable and such default continues for a period of 30 days;
(b) the Company defaults in the payment of the principal amount of,
or premium, if any, on Notes of a particular series when the same becomes due
and payable, whether at the applicable Stated Maturity, upon redemption, upon
declaration, or otherwise;
(c) the Company or any Guarantor fails to comply with any of its
agreements in this Indenture (other than those referred to in clauses (a) and
(b) above) and such failure continues for 90 days after receipt by the Company
of a Notice of Default with respect to the applicable series;
(d) an event of default, as defined in any indenture or instrument
evidencing or under which the Company or any Guarantor, on the date any
determination shall be made under this clause (d), shall have outstanding at
least $30,000,000 aggregate principal amount of Debt for borrowed money (other
than Non-Recourse Debt), shall happen and be continuing and such event of
default shall involve (x) the failure to pay the principal of or premium, if
any, on such Debt (or any part thereof) on the final maturity date thereof after
the expiration of any applicable grace period with respect thereto, or (y) such
Debt shall have been accelerated so that the same shall be or become due and
payable prior to the date on which the same would otherwise have become due and
payable, and such acceleration shall not be rescinded or annulled within Ten
Business Days after notice thereof shall have been given to the Company or such
Guarantor, as applicable, by the Trustee (if such event be known to it) or to
the Company or such Guarantor, as applicable, and the Trustee by the Holders of
at least 25% in aggregate principal amount of all of the Notes of that series at
the time outstanding; provided that, if such event of default under such
indenture or instrument shall be remedied or cured by the Company or such
Guarantor, as applicable, or waived by the requisite holders of such Debt, then
the Event of Default by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Securityholders, and provided further, however,
that subject to the provisions of Sections 7.1 and 7.2, the Trustee shall not be
charged with knowledge of any such event of default unless written notice
thereof shall have been given to the Trustee by the Company or such Guarantor,
as applicable, by the holder or an agent of the holder of any such Debt, by the
trustee then acting under any indenture or other instrument under which such
default shall have occurred, or by the Holders of not less than 25% in the
aggregate principal amount of the Notes of that series at the time outstanding;
(e) any Guarantee shall for any reason cease to be with respect to
that series of Notes, or shall for any reason be asserted in writing by such
Guarantor or the Company not to be,
30
in full force and effect and enforceable in accordance with its terms with
respect to that series of Notes, except to the extent contemplated by this
Indenture;
(f) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company or any Guarantor in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or any Guarantor or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(g) the Company or any Guarantor shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or any Guarantor or for any
substantial part of its property or make any general assignment for the benefit
of creditors.
A Default under clause (c) or (d) 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 Notes of such series at the time outstanding
notify the Company, the Guarantors and the Trustee, of the Default and neither
the Company nor any of the Guarantors cures such Default (and such Default is
not waived) within the time specified in clause (c) or (d) above after actual
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."
The Company or any Guarantor shall deliver to the Trustee, within 30
days after it becomes aware of the occurrence thereof, written notice of any
event which with the giving of notice or the lapse of time, or both, would
become an Event of Default under clauses (c) or (d) above, its status and what
action the Company or such Guarantor, as the case may be, is taking or proposes
to take with respect thereto.
Section 6.2 Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.1(f) or (g)) occurs and is continuing
with respect to either the 4.50% Notes or the 5.25% Notes, the Trustee by notice
to the Company and the Guarantors, or the Holders of at least 25% in aggregate
Principal Amount of the Notes of such series at the time outstanding by notice
to the Company, the Guarantors and the Trustee, may declare the Principal Amount
of all the Notes of such series plus all accrued interest thereon through the
date of declaration to be immediately due and payable. Upon such a declaration,
such Principal Amount plus all accrued interest and Additional Interest on the
Notes of such series, if any, shall become and be immediately due and payable.
If an Event of Default specified in Section 6.1(f) or (g) occurs and is
continuing, the Principal Amount of all the Notes of such series plus all
accrued interest and Additional Interest, if any, thereon shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders. The Holders of a majority in aggregate
Principal Amount of the Notes of such series at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may rescind an
acceleration and its consequences if the rescission would not conflict with any
31
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of the Principal Amount plus all accrued interest and
Additional Interest on the Notes of such series, if any, that have become due
solely as a result of acceleration and if all amounts due to the Trustee under
Section 7.7 have been paid. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section 6.3 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Principal Amount of all the Notes of such series plus all accrued
interest and Additional Interest on the Notes of such series, if any, thereon or
to enforce the performance of any provision of the Notes of such series or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Notes of such series or does not produce any of the Notes of
such series in the proceeding. A delay or omission by the Trustee or any
Securityholder 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 to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. The Holders of a majority in
aggregate Principal Amount of either series of Notes at the time outstanding, by
notice to the Trustee (and without notice to any other Securityholder of such
series), may waive, with respect to such series of Notes, an existing Default or
Event of Default and its consequences except (a) an Event of Default described
in Section 6.1(a) or 6.1(b); or (b) a Default in respect of a provision that
under Section 9.2 cannot be amended without the consent of each Securityholder
of such series affected by such amendment. 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. This Section 6.4 shall be in lieu of Section
316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.5 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 4.5, 4.9 and 4.10, if before the time for such compliance the Holders
of at least a majority in Principal Amount of the applicable outstanding Notes
of such series shall, by Act of such Holders either waive, with respect to such
series of Notes, such compliance in such instance or generally waive, with
respect to such series of Notes, 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, with respect to each
series of Notes, as applicable, 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.
Section 6.6 Control by Majority. The Holders of a majority in
aggregate Principal Amount of either series of Notes at the time outstanding
may, with respect to such series of Notes, 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. 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 Securityholders of
32
such series of Notes or would involve the Trustee in personal liability unless
the Trustee is offered indemnity satisfactory to it. This Section 6.6 shall be
in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
Section 6.7 Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or any series of Securities unless:
(a) the Holder of such series of Notes gives to the Trustee written
notice stating that an Event of Default is continuing with respect to such
series of Notes;
(b) the Holders of at least 25% in aggregate Principal Amount of the
Notes of such series at the time outstanding make a written request to the
Trustee to pursue the remedy with respect to such series of Notes;
(c) such Holder or Holders of such series offer to the Trustee
security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or indemnity;
and
(e) the Holders of a majority in aggregate Principal Amount of the
Notes of such series at the time outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.
A Securityholder of either series of Notes may not use this
Indenture to prejudice the rights of any other Securityholder of such series or
to obtain a preference or priority over any other Securityholder of the same
series.
Section 6.8 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of interest installments, the Principal Amount, Redemption Price or
Additional Interest, if any, or interest, if any, due on overdue amounts in
respect of the Notes of any series held by such Holder, on or after the
respective due dates expressed in the Notes of such series, 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 such Holder.
Section 6.9 Collection Suit by Trustee. If an Event of Default
described in Section 6.1(a) or 6.1(b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any Guarantor for the whole amount owing with respect to such Note
and the amounts provided for in Section 7.7.
Section 6.10 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, any Guarantor or any other obligor upon the
Notes or the property of the Company, such Guarantor or of such other obligor or
their creditors, the Trustee (irrespective of whether interest installments, the
Principal Amount, Redemption Price, Additional Interest, if any, or interest, if
any, due on overdue
33
amounts in respect of the Notes of such series 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 or such Guarantor for the
payment of any such amount) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(a) to file and prove a claim for any accrued and unpaid interest
installments, the whole amount of the Principal Amount, Redemption Price,
Additional Interest or interest, if any, due on overdue amounts in respect
of the Notes of such series, 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 or any
other amounts due the Trustee under Section 7.7) and of the Holders of the
Notes of such series 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 of the Notes of such series 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 of the Notes of such series, 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 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
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 6.11 Priorities. If the Trustee collects any money pursuant
to this Article VI with respect to a particular series of Notes, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Securityholders for amounts due and unpaid on the Notes
of such series for any accrued and unpaid interest installments, the
Principal Amount, Redemption Price, Additional Interest on such Notes, if
any, or interest, if any, due on overdue amounts in respect of such Notes,
as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on such Notes; and
Third: the balance, if any, to the Company or, to the extent the
Trustee collects any amount pursuant to the Guarantees from any Guarantor,
to such Guarantor, as applicable.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section 6.11. At least 15 days before such
record date, the Trustee shall mail to each Securityholder, the Company and any
Guarantor from whom the
34
Trustee collected any money pursuant to this Article VI a notice that states the
record date, the payment date and the amount to be paid.
Section 6.12 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 and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.12
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.8 or a suit by Holders of more than 10% in aggregate Principal Amount of the
Notes of either series at the time outstanding. This Section 6.12 shall be in
lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.13 Waiver of Stay, Extension or Usury Laws. Each of the
Company and the Guarantors 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 would prohibit or forgive the Company or such Guarantor, as the case may
be, from paying all or any portion of any interest installment, the Principal
Amount, Redemption Price, Additional Interest or interest, if any, due on
overdue amounts in respect of the Notes, as contemplated herein, or which may
affect the covenants or the performance of this Indenture; and the Company and
such Guarantor (in each case, 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.
Article VII
TRUSTEE
Section 7.1 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing (and has not been cured or waived in accordance with
the terms of this Indenture), 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 person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
35
(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, but
in case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture, but need not confirm
or investigate the accuracy of mathematical calculations or other facts
stated therein. This Section 7.1(b) shall be in lieu of Section 315(a) of
the TIA and such Section 315(a) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
(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 7.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(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 6.6.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(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 7.1.
(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.
(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
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
Section 7.2 Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
36
(b) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(d) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) The Trustee may consult with counsel selected by it and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel.
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(h) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the applicable series of
Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including its right to be indemnified, are extended
to, and shall be enforceable
37
by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company or any Guarantor
deliver an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers' Certificate may be
signed by any person authorized to sign an Officers' Certificate,
including any person specified as so authorized in any such certificate
previously delivered and not superseded.
Section 7.3 Individual Rights of Trustee. The Trustee, or any of its
Affiliates, in its individual or any other capacity may become the owner or
pledgee of Securities 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 may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, it shall not be responsible for any statement
in the registration statement for the Securities under the Securities Act or in
any offering document for the Securities, this Indenture or the Securities
(other than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
Section 7.5 Notice of Defaults. If a Default with respect to any
series of Notes occurs and if it is actually known to the Trustee, the Trustee
shall give to each Securityholder of such series of Notes notice of the Default
within 90 days after it occurs or, if later, within 15 days after it is known to
the Trustee, unless such Default shall have been cured or waived before the
giving of such notice. Notwithstanding the preceding sentence, except in the
case of a Default described in Sections 6.1(a) and 6.1(b), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of such
Securityholders. The second sentence of this Section 7.5 shall be in lieu of the
proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 7.6 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 Securityholder a brief report dated as of such May 15
that complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
applicable series of Securities are listed. The Company agrees to notify the
Trustee promptly and in writing whenever the Securities of any series become
listed on any securities exchange and of any delisting thereof.
38
Section 7.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
(to the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by such 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,
bad faith or willful misconduct; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any and all loss, damage,
claim, liability, cost or expense (including reasonable attorney's fees
and taxes (other than taxes based upon, measured by or determined by the
income of the Trustee)) 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 or investigating any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay interest
installments, the Principal Amount, Redemption Price, Additional Interest or
interest, if any, due on overdue amounts, as the case may be, in respect of any
series of Notes.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(f), the expenses, including the reasonable charges and
expenses of its counsel, are intended to constitute expenses of administration
under any bankruptcy law.
Section 7.8 Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.8.
The Trustee may resign by so notifying the Company at least 30 days
prior to the date of the proposed resignation. The Holders of a majority in
aggregate Principal Amount of either series of Notes at the time outstanding may
remove the Trustee with respect to such series of Notes by so notifying the
Trustee and the Company in writing. The Company may at any time prior to the
occurrence and continuation of an Event of Default remove the Trustee with
respect to either series of Notes, by Company Order given at least 30 days prior
to the date of the proposed removal.
The Company shall remove the Trustee if:
39
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed, with respect to either series
of Notes, 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.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective as to the applicable
series of Notes, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture as to such series. The successor
Trustee shall mail a notice of its succession to the Securityholders of such
series of Notes at their last known addresses as they shall appear in the
Security Register. 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 7.7.
If a successor Xxxxxxx 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 applicable series of
Notes at the time outstanding may petition any court of competent jurisdiction
at the expense of the Company for the appointment of a successor Trustee with
respect to such series of Notes.
If the Trustee fails to comply with Section 7.10, any Securityholder
of either series of Notes may petition any court of competent jurisdiction for
the removal of the Trustee with respect to such series of Notes and the
appointment of a successor Trustee.
The Company shall give notice of any resignation and any removal of
the Trustee and each appointment of a successor Trustee with respect to any
series of Notes to all Securityholders of such series of Notes. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Section 7.9 Successor Trustee by Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including the administration of the trust
created by this Indenture) to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee,
provided that such entity shall be eligible under the provisions of Section 7.10
hereof, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
(or its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth
40
in its most recent published annual report of condition. Nothing herein
contained shall prevent the Trustee from filing with the SEC the application
referred to in the penultimate paragraph of TIA Section 310(b).
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 VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities; Defeasance.
(a) When (i) the Company delivers to the Trustee all outstanding
Securities of any series (other than Securities replaced pursuant to Section
2.9) for cancellation or (ii) all outstanding Securities of any series have
become due and payable and the Company or any Guarantor deposits with the
Trustee in trust cash sufficient to pay all amounts due and owing on all
outstanding Securities of such series (other than Securities replaced pursuant
to Section 2.9), and if in either case the Company or any Guarantor pays all
other sums payable hereunder by the Company, then this Indenture shall, subject
to Section 7.7, cease to be of further effect with respect to such series of
Securities and any Guarantor shall be released from all of its obligations under
the Guarantee with respect to such series of Securities. The Trustee shall join
in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture with respect to such series of
Securities on demand of the Company accompanied by an Officers' Certificate and
Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.1(c), 8.3 and 8.6, the Company at any time
may terminate, (i) all its obligations under the Securities of any series and
this Indenture with respect to such Securities ("legal defeasance option") or
(ii) its obligations with respect to such Securities under Sections 4.9 and 4.10
and the related operation of Section 6.1(c) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option with respect to
a series of Securities, payment of such Securities may not be accelerated
because of an Event of Default. If the Company exercises its covenant defeasance
option with respect to a series of Securities, payment of such Securities may
not be accelerated because of an Event of Default specified in Section 6.1(c)
(except to the extent covenants or agreements referenced in such Sections remain
applicable).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
41
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.10, 2.9, 2.5, 2.4, 7.7, 8.4, 8.5 and 8.6, with respect
to Securities to be defeased, shall survive until such Securities have been paid
in full. Thereafter, the Company's obligations in Sections 7.7, 8.4 and 8.5,
with respect to the defeased Securities and all other series of Notes, shall
survive.
Section 8.2 Conditions of Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to any
series of Securities only if:
(a) the Company or any Guarantor irrevocably deposits in trust with
the Trustee an amount of money or U.S. Government Obligations for the payment of
principal of, and premium, if any, and interest on, such series of Securities to
maturity or redemption, as the case may be;
(b) the Company or any Guarantor delivers to the Trustee a
certificate from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and interest when due
and without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in such
amounts as will be sufficient to pay the principal, premium and interest when
due on all such series of Securities to maturity or redemption, as the case may
be;
(c) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.1(f) or (g) with respect to the Company
or any Guarantor occurs which is continuing at the end of the period;
(d) no Default or Event of Default has occurred and is continuing on
the date of such deposit and after giving effect thereto;
(e) the deposit does not constitute a default under any other
agreement binding on the Company;
(f) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not violate the Investment
Company Act of 1940, as amended;
(g) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from the Internal Revenue Service a ruling, or (ii) since the date
of this Indenture there has been a change in the applicable Federal income tax
law, in either case of the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such legal defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such legal defeasance had not occurred;
(h) in the event of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such series of Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of
42
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(i) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities of such series, if then listed on
any securities exchange, will not be delisted as a result of such deposit; and
(j) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of such series of Securities as contemplated by this
Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of any series of Securities at a
future date in accordance with Article III.
Section 8.3 Application of Trust Money. The Trustee shall hold in
trust, money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through any Paying Agent (including the Company and any
Guarantor acting as the Paying Agent) and in accordance with this Indenture to
the payment of principal of, and premium, if any, and interest on, the defeased
series of Securities.
Section 8.4 Repayment to the Company or Guarantor. The Trustee and
the Paying Agent shall return to the Company or any Guarantor, as the case may
be, upon written request any money or securities held by them for the payment of
any amount with respect to any series of Securities and accrued interest and
Additional Interest, if any, that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company or such
Guarantor, as applicable, Holders of such Securities entitled to the money or
securities must look to the Company and the Guarantors for payment as general
creditors unless an applicable abandoned property law designates another person
and the Trustee and the Paying Agent shall have no further liability to such
Securityholders with respect to such money or securities for that period
commencing after the return thereof.
Section 8.5 Indemnity for U.S. Government Obligations. The Company
shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 8.6 Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's and any Guarantors'
obligations under this Indenture and any defeased Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article VIII
until such time as the Trustee or any Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with this Article VIII.
43
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders. The Company, the Guarantors
and the Trustee may amend this Indenture or the Securities without the consent
of any Securityholder, so long as such changes, other than those in clause (b),
do not materially and adversely affect the interests of the Securityholder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article V;
(c) to secure the obligations of the Company under the Securities
and this Indenture;
(d) to add to the covenants of the Company or any Guarantor for the
benefit of the Securityholders or to surrender any right or power
conferred upon the Company or any Guarantor;
(e) to make any change necessary for the registration of the
Securities under the Securities Act or to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of this Indenture under the TIA; or
(f) to add one or more additional Guarantors in respect of the
Guarantees.
Section 9.2 With Consent of Holders. With the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
of any series at the time outstanding, the Company, the Guarantors and the
Trustee may amend such Securities or this Indenture with respect to such series
of Securities. However, without the consent of each Securityholder of such
series affected, an amendment to such series of Securities or this Indenture
with respect to such series of Securities may not:
(a) change the record or payment dates for interest installments, or
reduce the rate of interest referred to in paragraph 1 of the Notes, or
extend the time for payment of interest on any Note of such series;
(b) change the Stated Maturity of any Note of such series;
(c) reduce the Principal Amount or Redemption Price of any Note of
such series;
(d) make any Note of such series payable in money or securities
other than that stated in the Note;
44
(e) make any change in Section 6.4, Section 6.5, Section 6.8 or this
Section 9.2 with respect to the Notes of such series, except to increase
any percentage set forth therein; or
(f) impair the right to institute suit for enforcement of any
payment with respect to the Notes of such series; or
(g) modify the Guarantees in a manner adverse to Holders of the
Securities of such series.
It shall not be necessary for the consent of the Holders of such
series under this Section 9.2 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment under this Section 9.2 becomes effective, the
Company shall mail to each Holder of such series a notice briefly describing the
amendment.
Section 9.3 Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article IX shall comply with the TIA.
Section 9.4 Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of an affected Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Xxxxxx's
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Security or portion of the Security if the
Trustee receives the notice of revocation before the date the amendment, waiver
or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder of such series.
Section 9.5 Notation on or Exchange of Securities. Securities of a
particular series authenticated and delivered after the execution of any
supplemental indenture relating to that series pursuant to this Article IX 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 Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities of the same series.
Section 9.6 Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article IX if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.1) 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.
45
Section 9.7 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article IX, 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 of affected Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE X
GUARANTEES
Section 10.1 Agreement to Guarantee. The Guarantors, jointly and
severally, hereby agree as follows:
(a) The Guarantors fully and unconditionally guarantee to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, regardless of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company under this Indenture
or the Notes, that:
(1) the interest, Principal Amount, premium, if any, Redemption
Price and Additional Interest, if any, on the Notes will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest, if any, due on overdue amounts, on the Notes, to
the extent lawful, and all other obligations of the Company to the Holders
or the Trustee thereunder or under this Indenture will be promptly paid or
performed in full, all in accordance with the terms thereof; and
(2) in case of any extension of time for payment or renewal of any
Note or any of such other obligations, that the same will be promptly paid
in full when due in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
(b) Notwithstanding the foregoing, in the event that the Guarantees
would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Guarantors under this Indenture shall be reduced to the maximum amount
permissible under such fraudulent conveyance or similar law.
Section 10.2 Execution and Delivery of Guarantees. (a) To evidence
the Guarantees set forth in this Indenture, the Guarantors hereby agree that a
notation of such Guarantees shall be endorsed by an Officer of each of the
Guarantors on each Note authenticated and delivered by the Trustee after the
date hereof.
(b) Notwithstanding the foregoing, the Guarantors hereby agree that
the Guarantees set forth herein shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Guarantees.
(c) The delivery of any Note by the Trustee, after the
authentication thereof under this Indenture, shall constitute due delivery of
the Guarantees set forth in this Indenture on behalf of the Guarantors.
46
(d) The Guarantors hereby, jointly and severally, agree that their
obligations hereunder shall be unconditional, regardless of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of any series of
Notes with respect to any provisions of such Notes or this Indenture, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(e) The Guarantors hereby waive diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantees
made pursuant to this Indenture will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(f) If any Holder or the Trustee is required by any court or
otherwise to return to the Company or the Guarantors, or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, the
Guarantees made pursuant to this Indenture, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(g) The Guarantors agree that they shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
The Guarantors further agree that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand:
(1) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI of this Indenture for the purposes
of the Guarantees made pursuant to this Indenture, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby;
(2) in the event of any declaration of acceleration of such
obligations as provided in Article VI of this Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by
the Guarantors for the purpose of the Guarantees made pursuant to this
Indenture; and
(3) the Guarantors shall have the right to seek contribution from
any other non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders or the Trustee under the Guarantees
made pursuant to this Indenture.
Section 10.3 No Recourse Against Others. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guarantors, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, any Guarantees, this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
47
Section 10.4 Future Guarantees. The Company shall cause each
Subsidiary which becomes a guarantor under the Credit Agreement after the date
of this Indenture to promptly execute and deliver to (a) the Trustee, (i) a
Guarantee substantially in the form of the Supplemental Indenture attached as
Exhibit D hereto pursuant to which such Subsidiary shall fully and
unconditionally guarantee, on a joint and several basis, the full and prompt
payment of the interest, Principal Amount, premium, if any, Redemption Price and
Additional Interest, if any, with respect to the Notes and (ii) an Opinion of
Counsel stating that the supplemental indenture is a legally binding and valid
obligation of the Subsidiary, enforceable against the Subsidiary in accordance
with its terms subject to bankruptcy, insolvency, reorganization, moratorium, or
other laws relating to or affecting creditors' rights and by general principles
of equity, and (b) the Holders, so long as the Company's and the Guarantors'
obligations under the Registration Rights Agreement remain in effect, an
acknowledgement that such Subsidiary shall become a party to the Registration
Rights Agreement.
Section 10.5 Release of Guarantees. Notwithstanding anything in this
Article X to the contrary, concurrently with the payment or performance in full
of (i) all amounts due and owing on all outstanding Securities and (ii) all
other obligations of the Company under this Indenture, the Guarantors shall be
released from and relieved from their obligations under this Article X. Upon the
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that the transaction giving rise to the release
of the Guarantees was made by the Company in accordance with the provisions of
this Indenture and the Securities, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Guarantors from
their obligations under the Guarantees. If any of the obligations of the Company
are revived and reinstated after the termination of the Guarantees, then all of
the obligations of the Guarantors under the Guarantees shall be revived and
reinstated as if such Guarantees had not been terminated until such time as all
the amounts due and owing on all outstanding Securities are paid in full, and
each Guarantor shall enter into an amendment to the Guarantees, reasonably
satisfactory to the Trustee, evidencing such revival and reinstatement.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 11.2 Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
48
if to the Company or any Guarantor, to:
GTECH Holdings Corporation
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Trustee, to:
SunTrust Bank
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Securityholder shall be
mailed to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the applicable registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders of the same series. 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
Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent or co-registrar.
Section 11.3 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent and any
other applicable Person shall have the protection of TIA Section 312(c).
49
Section 11.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate 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
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.5 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:
(a) a statement that each person making such Officers' Certificate
or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(c) 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
(d) a statement that, in the opinion of such person, such covenant
or condition has been complied with.
Section 11.6 Separability Clause. In case any provision in this
Indenture or in the Securities 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 11.7 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by, or a meeting of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
Section 11.8 Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest, if any, shall accrue for the intervening
period.
Section 11.9 Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS INDENTURE AND THE SECURITIES.
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
50
Company under the Notes or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note, each Securityholder
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 and the
Guarantors in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
Section 11.12 Multiple Originals. The parties may sign in
counterpart 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.
Section 11.13 Waiver of Jury Trial. Each of the Company, the
Guarantors and the Trustee hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Indenture, the Securities or the
transactions contemplated hereby.
51
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
GTECH HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Mergers & Acquisitions
and Treasurer
GTECH CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Mergers & Acquisitions
and Treasurer
GTECH RHODE ISLAND CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
GTECH LATIN AMERICA CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
SUNTRUST BANK,
as Trustee
By: /s/ X. X. Xxxxxxxxx
------------------------------------------
Name: X. X. Xxxxxxxxx
Title: Vice President
52
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. 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 NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT
ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY 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.
A-1
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.8 OF
THE INDENTURE.]
A-2
GTECH HOLDINGS CORPORATION
4.50% Senior Note due 2009
CUSIP [__________]
No. R- [ ] $150,000,000.00
GTECH HOLDINGS CORPORATION, a Delaware corporation (the "Company",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to Cede & Co, or its registered assigns, the
principal sum of ONE HUNDRED AND FIFTY MILLION DOLLARS ($150,000,000.00) on
December 1, 2009.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2005.
Regular Record Dates: May 15 and November 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
[SIGNATURE PAGE FOLLOWS]
[ATTACH NOTATION OF GUARANTEE FOR EACH GUARANTOR]
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
GTECH HOLDINGS CORPORATION
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 4.50% Senior Notes due 2009 described in the within-mentioned
Indenture.
Date: November 19, 2004
SUNTRUST BANK,
as Trustee
By:
---------------------------------
Authorized Signatory
A-4
[FORM OF REVERSE SIDE OF NOTE]
GTECH HOLDINGS CORPORATION
4.50% Senior Note due 2009 (the "Notes")
1. Principal and Interest.
The Company will pay the principal of this Note on December 1, 2009.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest, and Additional Interest, if any, will be payable
semiannually (to the holders of record of the Notes at the close of business on
the May 15 or November 15 immediately preceding the Interest Payment Date) on
each Interest Payment Date, commencing June 1, 2005.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Notes is not declared effective by the Commission, on or before the date
specified in the Registration Rights Agreement dated November 19, 2004 between
the Company, the Guarantors and the Initial Purchasers named therein, the annual
interest rate borne by the Notes shall be increased as specified in the
Registration Rights Agreement, payable in cash semiannually, in arrears, on each
Interest Payment Date, commencing on the first Interest Payment Date after a
Registration Default until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective. The Holder of this Note is
entitled to the benefits of such Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from November 19, 2004;
provided that, if there is no existing default in the payment of interest and
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest and Additional Interest,
if any, to the extent lawful, at the interest rate borne by the Securities at
the time such interest accrues.
2. Method of Payment.
The Company will pay interest (except defaulted interest), and
Additional Interest, if any, on the principal amount of the Notes as provided
above on each June 1 and
A-5
December 1, commencing June 1, 2005 to the persons who are Holders (as reflected
in the Security Register at the close of business on the May 15 or November 15
immediately preceding the Interest Payment Date), in each case, even if the Note
is cancelled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the
Company will make payment to the Holder that surrenders this Note to a Paying
Agent on or after December 1, 2009 and provided further however, that interest
and Additional Interest, if any, payable on the maturity date or on a date on
which Notes are redeemed by the Company in accordance with the provisions of
Article III of the Indenture, shall be paid to the Person to whom the principal
amount or the redemption price of the Notes is payable on such date.
The Company will pay principal, premium, if any, and as provided
above, interest, in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest, by its check payable in such
money. It may mail an interest check to a Holder's registered address (as
reflected in the Security Register). If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, Paying
Agent and Registrar. The Company may change any authenticating agent, Paying
Agent or Registrar without notice, other than notice to the Trustee; provided
that the Company will maintain at least one Paying Agent in the State of New
York, City of New York, Borough of Manhattan, which shall initially be an office
or agency of the Trustee. The Company, any Subsidiary or any Affiliate of any of
them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of November
19, 2004 (the "Indenture"), among the Company, the Guarantors and SunTrust Bank,
as trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. 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. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may issue additional Notes under the Indenture.
5. Optional Redemption.
No sinking fund is provided for the Notes. Subject to the terms and
conditions of the Indenture, the Notes are redeemable in whole at any time or in
part from time to time prior to maturity. The redemption price will be equal to
the greater of (1) 100% of the principal amount
A-6
of the Notes to be redeemed and (2) the sum of the present values of the
principal amount of the Notes and the remaining scheduled payments of interest
on such Notes to be redeemed (exclusive of interest accrued to the date of
redemption), in each case discounted from their respective scheduled payment
dates to the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points,
plus, in each case, accrued and unpaid interest on the principal amount being
redeemed to the redemption date.
6. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Notes in accordance with the
Indenture. 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. The Registrar need not register
the transfer or exchange of any Notes selected for redemption. Also, it need not
register the transfer or exchange of any Notes for a period of 15 days before
the day of mailing of a notice of redemption of Notes selected for redemption.
7. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all purposes.
8. Unclaimed Money.
The Trustee and the Paying Agent shall return to the Company or any
applicable Guarantor, as the case may be, upon written request any money or
securities held by them for the payment of any amount with respect to the Notes
that remains unclaimed for two years, subject to applicable unclaimed property
law. After return to the Company or such Guarantor, Holders entitled to the
money or securities must look to the Company and the Guarantors, for payment as
general creditors unless an applicable abandoned property law designates another
person.
9. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes, except in certain
circumstances for certain provisions thereof, and (b) to the Stated Maturity,
the Company will be discharged from certain covenants set forth in the
Indenture.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
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
Securities at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities so long as such changes, other
than those in clause (ii), do not materially and adversely affect the interest
of Securityholders (i) to cure any ambiguity,
A-7
omission, defect or inconsistency, (ii) to comply with Article V of the
Indenture, (iii) to add to the covenants of the Company or any Guarantor for the
benefit of Securityholders, to surrender any rights or power conferred upon the
Company or any Guarantor or to secure the Company's obligations under the
Securities and this Indenture, (iv) to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA, or (v) to add
one or more additional guarantors in respect of the Guarantees under Section
10.4 of the Indenture.
11. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur certain
debt secured by Xxxxx, enter into Sale and Leaseback Transactions or merge,
consolidate or transfer substantially all of its assets. Within 90 days after
the end of each fiscal year of the Company, beginning with the fiscal year
ending February 26, 2005, the Company shall deliver to the Trustee an Officers'
Certificate stating whether or not the signers thereof know of any Company or
Guarantors Default or Event of Default under such restrictive covenants.
12. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes, the Guarantees and the Indenture, the
predecessor person will be released from those obligations.
13. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for 30
days in payment of any interest or Additional Interest, if any, on any
Securities after receipt by the Company of a Notice of Default, (ii) defaults in
the payment of the principal amount of, or premium, if any, on Notes when the
same becomes due and payable, whether at Stated Maturity, upon redemption, upon
declaration, or otherwise, (iii) failure by the Company or any Guarantor to
comply with any of its agreements in the Indenture (other than those referred to
in clauses (i) and (ii) above) and such failure continues for 90 days after
receipt by the Company of a Notice of Default under the Indenture; (iv) default
by the Company or any Guarantor in the payment at the final maturity thereof,
after the expiration of any applicable grace period, of principal of or interest
on indebtedness for money borrowed, other than Non-Recourse Debt, in the
principal amount then outstanding of $30 million or more, or acceleration of any
indebtedness in such principal amount so that it becomes due and payable prior
to the date on which it would otherwise have become due and payable and such
acceleration is not rescinded within 10 Business Days after notice to the
Company or such Guarantor, as applicable, in accordance with the Indenture, and
the Trustee by the Holders of at least 25% in aggregate principal amount of all
of the Securities at the time outstanding; provided that, if such event of
default under such indenture or instrument shall be remedied or cured by the
Company or such Guarantor, as applicable, or waived by the requisite holders of
such Debt, then the Event of Default by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Securityholders, and provided further,
however, that subject to the provisions of Sections 7.1 and 7.2 of the
Indenture, the Trustee shall not be charged with knowledge of any such event of
default unless written notice thereof shall have been given to the Trustee by
the Company or such Guarantor, as applicable, by the holder or an agent of the
holder
A-8
of any such Debt, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the Holders of
not less than 25% in the aggregate principal amount of the Securities at the
time outstanding, (v) any Guarantee ceasing to be, or the Company or such
Guarantor asserting that such Guarantee shall not be, in full force and effect
and enforceable in accordance with its terms, except to the extent contemplated
by the Indenture or such Guarantee; and (vi) certain events of bankruptcy or
insolvency.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate Principal
Amount of the Securities at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of amounts
specified in clause (i) or (ii) above) if it determines that withholding notice
is in their interests.
14. Trustee Dealings with the Company or Guarantors.
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 Securities 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 any Guarantor or their respective Affiliates with the same rights it would
have if it were not Trustee.
15. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Company or any Guarantor shall not have any liability for any obligations of the
Company or such Guarantor under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
16. Authentication.
This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this Note.
17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to GTECH Holdings
Corporation, 00 Xxxxxxxxxx Xxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000; Attention:
General Counsel.
A-9
The Guarantors (as defined in the Indenture referred to in the Notes
upon which this notation is endorsed and each hereinafter referred to as a
"Guarantor," which term includes any successor person under the Indenture) have
fully and unconditionally guaranteed on a senior unsecured basis (such
guarantees being collectively referred to herein as the "Guarantees") (i) the
due and punctual payment of the interest, Principal Amount, premium, if any,
Redemption Price, Purchase Price and Additional Interest, if any, on the Notes,
whether at maturity, by acceleration, redemption or otherwise, and interest, if
any, due on overdue amounts on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms set forth in Article X of the
Indenture and (ii) in the case of any extension of time of payment or renewal of
any Note or any of such other obligations, that the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. The
Guarantees shall be joint and several obligations of the Guarantors.
No stockholder, officer, director, employee or incorporator, as
such, past, present or future, of any Guarantor shall have any liability under
the Guarantees by reason of his or its status as such stockholder, officer,
director, employee or incorporator.
The Guarantees shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which the Guarantees
are noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
A-10
IN WITNESS WHEREOF, each Guarantor has caused the Guarantees to be
signed by its duly authorized officer.
GTECH CORPORATION
By:
-------------------------------
Name:
Title:
GTECH RHODE ISLAND CORPORATION
By:
-------------------------------
Name:
Title:
GTECH LATIN AMERICA CORPORATION
By:
-------------------------------
Name:
Title:
A-11
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-------------------------------------------------------------------------
Please print or typewrite name and address including zip code 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.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by
Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
A-12
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.8 of the Indenture shall have
been satisfied.
Date: __________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the
within-mentioned instrument in every particular, without
alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: __________
NOTICE: To be executed by an executive officer
A-13
EXHIBIT A-2
[FORM OF FACE OF GLOBAL SECURITY]
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. 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 NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT
ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING RESTRICTIONS.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY 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.
A-14
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.8 OF
THE INDENTURE.]
A-15
GTECH HOLDINGS CORPORATION
5.25% Senior Note due 2014
CUSIP [__________]
No. R - [ ] $150,000,000.00
GTECH HOLDINGS CORPORATION, a Delaware corporation (the "Company",
which term includes any successor under the Indenture hereinafter referred to),
for value received, promises to pay to Cede & Co, or its registered assigns, the
principal sum of ONE HUNDRED AND FIFTY MILLION DOLLARS ($150,000,000.00) on
December 1, 2014.
Interest Payment Dates: June 1 and December 1 commencing June 1,
2005.
Regular Record Dates: May 15 and November 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
[SIGNATURE PAGE FOLLOWS]
[ATTACH NOTATION OF GUARANTEE FOR EACH GUARANTOR]
A-16
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
GTECH HOLDINGS CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 5.25% Senior Notes due 2014 described in the within-mentioned
Indenture.
Date: November 19, 2004
SUNTRUST BANK,
as Trustee
By:
------------------------------------
Authorized Signatory
A-17
[FORM OF REVERSE SIDE OF NOTE]
GTECH HOLDINGS CORPORATION
5.25% Senior Note due 2014 (the "Notes")
1. Principal and Interest.
The Company will pay the principal of this Note on December 1, 2014.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest, and Additional Interest, if any, will be payable
semiannually (to the holders of record of the Notes at the close of business on
the May 15 or November 15 immediately preceding the Interest Payment Date) on
each Interest Payment Date, commencing June 1, 2005.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the "Shelf
Registration Statement") under the Securities Act with respect to resales of the
Notes is not declared effective by the Commission, on or before the date
specified in the Registration Rights Agreement dated November 19, 2004 between
the Company, the Guarantors and the Initial Purchasers named therein, the annual
interest rate borne by the Notes shall be increased as specified in the
Registration Rights Agreement, payable in cash semiannually, in arrears, on each
Interest Payment Date, commencing on the first Interest Payment Date after a
Registration Default until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective. The Holder of this Note is
entitled to the benefits of such Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from November 19, 2004;
provided that, if there is no existing default in the payment of interest and
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest and Additional Interest,
if any, to the extent lawful, at the interest rate borne by the Securities at
the time such interest accrues.
2. Method of Payment.
The Company will pay interest (except defaulted interest), and
Additional Interest, if any, on the principal amount of the Notes as provided
above on each June 1 and
A-18
December 1, commencing June 1, 2005 to the persons who are Holders (as reflected
in the Security Register at the close of business on the May 15 or November 15
immediately preceding the Interest Payment Date), in each case, even if the Note
is cancelled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the
Company will make payment to the Holder that surrenders this Note to a Paying
Agent on or after December 1, 2014 and provided further however, that interest
and Additional Interest, if any, payable on the maturity date or on a date on
which Notes are redeemed by the Company in accordance with the provisions of
Article III of the Indenture, shall be paid to the Person to whom the principal
amount or the redemption price of the Notes is payable on such date.
The Company will pay principal, premium, if any, and as provided
above, interest, in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest, by its check payable in such
money. It may mail an interest check to a Holder's registered address (as
reflected in the Security Register). If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, Paying
Agent and Registrar. The Company may change any authenticating agent, Paying
Agent or Registrar without notice, other than notice to the Trustee; provided
that the Company will maintain at least one Paying Agent in the State of New
York, City of New York, Borough of Manhattan, which shall initially be an office
or agency of the Trustee. The Company, any Subsidiary or any Affiliate of any of
them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of November
19, 2004 (the "Indenture"), among the Company, the Guarantors and SunTrust Bank,
as trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. 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. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company.
The Company may issue additional Notes under the Indenture.
5. Optional Redemption.
No sinking fund is provided for the Notes. Subject to the terms and
conditions of the Indenture, the Notes are redeemable in whole at any time or in
part from time to time prior to maturity. The redemption price will be equal to
the greater of (1) 100% of the principal amount
A-19
of the Notes to be redeemed and (2) the sum of the present values of the
principal amount of the Notes and the remaining scheduled payments of interest
on such Notes to be redeemed (exclusive of interest accrued to the date of
redemption), in each case discounted from their respective scheduled payment
dates to the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points,
plus, in each case, accrued and unpaid interest on the principal amount being
redeemed to the redemption date.
6. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Notes in accordance with the
Indenture. 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. The Registrar need not register
the transfer or exchange of any Notes selected for redemption. Also, it need not
register the transfer or exchange of any Notes for a period of 15 days before
the day of mailing of a notice of redemption of Notes selected for redemption.
7. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all purposes.
8. Unclaimed Money.
The Trustee and the Paying Agent shall return to the Company or any
applicable Guarantor, as the case may be, upon written request any money or
securities held by them for the payment of any amount with respect to the Notes
that remains unclaimed for two years, subject to applicable unclaimed property
law. After return to the Company or such Guarantor, Holders entitled to the
money or securities must look to the Company and the Guarantors, for payment as
general creditors unless an applicable abandoned property law designates another
person.
9. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes, except in certain
circumstances for certain provisions thereof, and (b) to the Stated Maturity,
the Company will be discharged from certain covenants set forth in the
Indenture.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
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
Securities at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities so long as such changes, other
than those in clause (ii), do not materially and adversely affect the interest
of Securityholders (i) to cure any ambiguity,
A-20
omission, defect or inconsistency, (ii) to comply with Article V of the
Indenture, (iii) to add to the covenants of the Company or any Guarantor for the
benefit of Securityholders, to surrender any rights or power conferred upon the
Company or any Guarantor or to secure the Company's obligations under the
Securities and this Indenture, (iv) to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA, or (v) to add
one or more additional guarantors in respect of the Guarantees under Section
10.4 of the Indenture.
11. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur certain
debt secured by Xxxxx, enter into Sale and Leaseback Transactions or merge,
consolidate or transfer substantially all of its assets. Within 90 days after
the end of each fiscal year of the Company, beginning with the fiscal year
ending February 26, 2004, the Company shall deliver to the Trustee an Officers'
Certificate stating whether or not the signers thereof know of any Company or
Guarantors Default or Event of Default under such restrictive covenants.
12. Successor Persons.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes, the Guarantees and the Indenture, the
predecessor person will be released from those obligations.
13. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for 30
days in payment of any interest or Additional Interest, if any, on any
Securities after receipt by the Company of a Notice of Default, (ii) defaults in
the payment of the principal amount of, or premium, if any, on Notes when the
same becomes due and payable, whether at Stated Maturity, upon redemption, upon
declaration, or otherwise, (iii) failure by the Company or any Guarantor to
comply with any of its agreements in the Indenture (other than those referred to
in clauses (i) and (ii) above) and such failure continues for 90 days after
receipt by the Company of a Notice of Default under the Indenture; (iv) default
by the Company or any Guarantor in the payment at the final maturity thereof,
after the expiration of any applicable grace period, of principal of or interest
on indebtedness for money borrowed, other than Non-Recourse Debt, in the
principal amount then outstanding of $30 million or more, or acceleration of any
indebtedness in such principal amount so that it becomes due and payable prior
to the date on which it would otherwise have become due and payable and such
acceleration is not rescinded within 10 Business Days after notice to the
Company or such Guarantor, as applicable, in accordance with the Indenture, and
the Trustee by the Holders of at least 25% in aggregate principal amount of all
of the Securities at the time outstanding; provided that, if such event of
default under such indenture or instrument shall be remedied or cured by the
Company or such Guarantor, as applicable, or waived by the requisite holders of
such Debt, then the Event of Default by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Securityholders, and provided further,
however, that subject to the provisions of Sections 7.1 and 7.2 of the
Indenture, the Trustee shall not be charged with knowledge of any such event of
default unless written notice thereof shall have been given to the Trustee by
the Company or such Guarantor, as applicable, by the holder or an agent of the
holder
A-21
of any such Debt, by the trustee then acting under any indenture or other
instrument under which such default shall have occurred, or by the Holders of
not less than 25% in the aggregate principal amount of the Securities at the
time outstanding, (v) any Guarantee ceasing to be, or the Company or such
Guarantor asserting that such Guarantee shall not be, in full force and effect
and enforceable in accordance with its terms, except to the extent contemplated
by the Indenture or such Guarantee; and (vi) certain events of bankruptcy or
insolvency.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate Principal
Amount of the Securities at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of amounts
specified in clause (i) or (ii) above) if it determines that withholding notice
is in their interests.
14. Trustee Dealings with the Company or Guarantors.
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 Securities 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 any Guarantor or their respective Affiliates with the same rights it would
have if it were not Trustee.
15. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Company or any Guarantor shall not have any liability for any obligations of the
Company or such Guarantor under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
16. Authentication.
This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this Note.
17. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to GTECH Holdings
Corporation, 00 Xxxxxxxxxx Xxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000; Attention:
General Counsel.
A-22
The Guarantors (as defined in the Indenture referred to in the Notes
upon which this notation is endorsed and each hereinafter referred to as a
"Guarantor," which term includes any successor person under the Indenture) have
fully and unconditionally guaranteed on a senior unsecured basis (such
guarantees being collectively referred to herein as the "Guarantees") (i) the
due and punctual payment of the interest, Principal Amount, premium, if any,
Redemption Price, Purchase Price and Additional Interest, if any, on the Notes,
whether at maturity, by acceleration, redemption or otherwise, and interest, if
any, due on overdue amounts on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms set forth in Article X of the
Indenture and (ii) in the case of any extension of time of payment or renewal of
any Note or any of such other obligations, that the same will be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. The
Guarantees shall be joint and several obligations of the Guarantors.
No stockholder, officer, director, employee or incorporator, as
such, past, present or future, of any Guarantor shall have any liability under
the Guarantees by reason of his or its status as such stockholder, officer,
director, employee or incorporator.
The Guarantees shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which the Guarantees
are noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
A-23
IN WITNESS WHEREOF, each Guarantor has caused the Guarantees to be
signed by its duly authorized officer.
GTECH CORPORATION
By:
---------------------------------
Name:
Title:
GTECH RHODE ISLAND CORPORATION
By:
---------------------------------
Name:
Title:
GTECH LATIN AMERICA CORPORATION
By:
---------------------------------
Name:
Title:
A-24
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-------------------------------------------------------------------------
Please print or typewrite name and address including zip code 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.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the Shelf Registration Statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by
Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
A-25
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.8 of the Indenture shall have
been satisfied.
Date: __________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the
within-mentioned instrument in every particular, without
alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: __________
NOTICE: To be executed by an executive officer
A-26
EXHIBIT B
Form of Certificate
__________,
SunTrust Bank
Attention: Corporate Trust Administration
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Re: GTECH Holdings Corporation (the "Company")
[4.50] [5.25]% Senior Notes due December 1, [2009] [2014] (the "Notes")
Dear Sirs:
This letter relates to U.S. $_____ principal amount of Notes represented
by a Note (the "Legended Note") which bears a legend outlining restrictions upon
transfer of such Legended Note. Pursuant to Section 2.2 of the Indenture dated
as of November 19, 2004 (the "Indenture") relating to the Notes, we hereby
certify that we are (or we will hold such securities on behalf of) a person
outside the United States to whom the Notes could be transferred in accordance
with Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933.
Accordingly, you are hereby requested to exchange the legended certificate for
an unlegended certificate representing an identical principal amount of Notes,
all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Xxxxxx]
By:____________________________________
Authorized Signature
B-1
EXHIBIT C
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
__________,
SunTrust Bank
Attention: Corporate Trust Administration
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Re: GTECH Holdings Corporation (the "Company")
[4.50] [5.25]% Senior Notes due December 1, [2009] [2014] (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S. $_____ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the Securities Act of 1933 and,
accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________________
Authorized Signature
C-1
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE TO ADD GUARANTORS
This Supplemental Indenture, dated as of __________ (this
"Supplemental Indenture"), among [name of future Guarantor] (the "New
Guarantor"), GTECH Holdings Corporation (together with its successors and
assigns, the "Company"), each other then existing Guarantor under the Indenture
referred to below (the "Guarantors"), and SunTrust Bank, as Trustee under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee have heretofore
executed and delivered an Indenture, dated as of November 19, 2004 (as amended,
supplemented, waived or otherwise modified, the "Indenture"), providing for the
issuance of an aggregate principal amount of $150,000,000 million of 4.50%
Senior Notes due December 1, 2009 and an aggregate principal amount of
$150,000,000 million of 5.25% Senior Notes due December 1, 2014 of the Company
(collectively, the "Notes");
WHEREAS, Section 10.4 of the Indenture provides that the Company is
required to cause each Subsidiary which becomes a guarantor under the Credit
Agreement after the date of the Indenture to execute and deliver to the Trustee
a Supplemental Indenture pursuant to which such Subsidiary will fully and
unconditionally guarantee, on a joint and several basis with the other
Guarantors, the full and prompt payment of the Principal Amount, premium, if
any, interest, Redemption Price and Additional Interest, if any, on the Notes on
a senior basis, and the performance of all other obligations of the Company to
the Holders and the Trustee all in accordance with the terms set forth in
Article X of the Indenture;
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the
Company and the Guarantors are authorized to execute and deliver this
Supplemental Indenture to amend the Indenture, without the consent of any
Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the other Guarantors and the Trustee mutually covenant
and agree for the equal and ratable benefit of the Holders of the Notes as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders"
D-1
in this Supplemental Indenture shall refer to the term "Holders" as defined in
the Indenture and the Trustee acting on behalf or for the benefit of such
holders. The words "herein," "hereof" and "hereby" and other words of similar
import used in this Supplemental Indenture refer to this Supplemental Indenture
as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
Section 2.1 Agreement to be Bound. The New Guarantor hereby becomes
a party to the Indenture as a Guarantor and as such will have all of the rights
and be subject to all of the obligations and agreements of a Guarantor under the
Indenture. The New Guarantor agrees to be bound by all of the provisions of the
Indenture applicable to a Guarantor and to perform all of the obligations and
agreements of a Guarantor under the Indenture.
Section 2.2 Guarantee. The New Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally with each other Guarantor, to each Holder of the
Notes and the Trustee, the full and punctual payment when due, whether at
maturity, upon redemption or repurchase, by declaration of acceleration or
otherwise, of the obligations pursuant to Article X of the Indenture on a senior
basis and subject to the terms and conditions of this Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1 Notices. All notices and other communications to the New
Guarantor shall be given as provided in this Indenture to the New Guarantor, at
its address set forth below, with a copy to the Company as provided in this
Indenture for notices to the Company.
Section 3.2 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or this Indenture or any
provision herein or therein contained.
Section 3.3 Governing Laws. This Supplemental Indenture shall be
governed by the laws of the State of New York.
Section 3.4 Severability Clause. In case any provision in this
Supplemental Indenture 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 and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
Section 3.5 Ratification of Indenture; Supplemental Indenture Part
of Indenture; Trustee's Disclaimer. Except as expressly amended hereby, this
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of this Indenture for all
D-2
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby. The Trustee makes no representation or
warranty as to the validity or sufficiency of this Supplemental Indenture.
Section 3.6 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
Section 3.7 Headings. The headings of the Articles and the sections
in this Supplemental Indenture are for convenience of reference only and shall
not be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
D-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
as a Guarantor
By:____________________________________
Name:
Title:
SUNTRUST BANK, as Trustee
By:____________________________________
Name:
Title:
GTECH HOLDINGS CORPORATION
By:____________________________________
Name:
Title:
GTECH CORPORATION
By:____________________________________
Name:
Title:
GTECH RHODE ISLAND CORPORATION
By:____________________________________
Name:
Title:
GTECH LATIN AMERICA CORPORATION
By:____________________________________
Name:
Title:
D-4
