EXHIBIT 4.1
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AGCO CORPORATION
as Issuer,
and
SUNTRUST BANK,
as Trustee
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INDENTURE
Dated as of
April 23, 2004
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6-7/8% SENIOR SUBORDINATED NOTES DUE 2014
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
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Section 310(a)(1)............................................... 7.09
(a)(2)................................................. 7.09
(a)(3)................................................. N.A.
(a)(4)................................................. N.A.
(a)(5)................................................. 7.09
(b).................................................... 7.08, 7.10
(c).................................................... N.A.
Section 311(a).................................................. 7.13
(b).................................................... 7.13
(c).................................................... N.A.
Section 312(a).................................................. 5.01, 5.02(a)
(b).................................................... 5.02(b)
(c).................................................... 5.02(c)
Section 313(a).................................................. 5.03(a)
(b)(1)................................................. 5.03(a)
(b)(2)................................................. 5.03(a)
(c).................................................... 5.03(a)
(d).................................................... 5.03(c)
Section 314(a).................................................. 5.04
(b).................................................... 5.04
(c)(1)................................................. 15.05
(c)(2)................................................. 15.05
(c)(3)................................................. N.A.
(d).................................................... N.A.
(e).................................................... 15.05
Section 315(a).................................................. 7.01
(b).................................................... 5.03, 7.02
(c).................................................... 7.01
(d).................................................... 7.01
(e).................................................... 6.08
Section 316(a)(last sentence)................................... 6.07
(a)(1)(A).............................................. 6.07
(a)(1)(B).............................................. 6.07
(a)(2)................................................. N.A.
(b).................................................... 6.04
(c).................................................... 8.01
Section 317(a)(1)............................................... 6.02
(a)(2)................................................. 6.02
(b).................................................... 4.16
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Section 318(a).................................................. 15.07
N.A. means not applicable.
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part
of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Section 1.01. Definitions........................................................................................ 1
ARTICLE II
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01. Designation, Amount and Issue of Notes............................................................. 27
Section 2.02. Form of Notes...................................................................................... 27
Section 2.03. Date and Denomination of Notes; Payments of Interest............................................... 28
Section 2.04. Execution and Authentication of Notes.............................................................. 29
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer........................... 30
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes......................................................... 32
Section 2.07. Temporary Notes.................................................................................... 33
Section 2.08. Cancellation of Notes.............................................................................. 34
Section 2.09. CUSIP Numbers...................................................................................... 34
ARTICLE III
Redemption of Notes
Section 3.01. Redemption of Notes at the Option of the Company................................................... 34
Section 3.02. Redemption by the Company for Tax Purposes......................................................... 35
Section 3.03. Notice of Optional Redemption; Selection of Notes.................................................. 36
Section 3.04. Payment of Notes Called for Redemption by the Company.............................................. 37
ARTICLE IV
Particular Covenants of the Company
Section 4.01. Payment of Principal, Premium and Interest......................................................... 38
Section 4.02. Obligation to Pay Additional Amounts............................................................... 38
Section 4.03. Limitation on Indebtedness......................................................................... 41
Section 4.04. Limitation on Senior Subordinated Indebtedness..................................................... 44
Section 4.05. Limitation on Restricted Payments.................................................................. 44
Section 4.06. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries............ 47
Section 4.07. Limitation on the Issuance and Sale of Capital Stock of Restricted Subsidiaries.................... 49
Section 4.08. Limitation on Issuances of Guarantees by Restricted Subsidiaries................................... 50
Section 4.09. Limitation on Transactions with Stockholders and Affiliates........................................ 51
Section 4.10. Limitation on Liens................................................................................ 52
Section 4.11. Limitation on Asset Sales.......................................................................... 52
Section 4.12. Limitation on Sale/Leaseback Transactions.......................................................... 53
Section 4.13. Repurchase Upon Change of Control.................................................................. 54
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Section 4.14. Maintenance of Office or Agency.................................................................... 54
Section 4.15. Appointments to Fill Vacancies in Trustee's Office................................................. 54
Section 4.16. Provisions as to Paying Agent...................................................................... 55
Section 4.17. Existence.......................................................................................... 56
Section 4.18. Maintenance of Properties.......................................................................... 56
Section 4.19. Payment of Taxes and Other Claims.................................................................. 56
Section 4.20. Stay, Extension and Usury Laws..................................................................... 56
Section 4.21. Compliance Certificate; Notice of Default.......................................................... 57
Section 4.22. Limitation on Applicability of Certain Covenants................................................... 57
ARTICLE V
Noteholders' Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Names and Addresses of Noteholders...................................... 57
Section 5.02. Preservation and Disclosure of Lists............................................................... 57
Section 5.03. Reports by Trustee................................................................................. 58
Section 5.04. Reports by Company................................................................................. 58
ARTICLE VI
Events of Default and Remedies
Section 6.01. Events of Default; Acceleration.................................................................... 58
Section 6.02. Payments of Notes on Default; Suit Therefor........................................................ 61
Section 6.03. Application of Monies Collected by Trustee......................................................... 62
Section 6.04. Proceedings by Noteholder.......................................................................... 63
Section 6.05. Proceedings by Trustee............................................................................. 64
Section 6.06. Remedies Cumulative and Continuing................................................................. 64
Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders......................... 64
Section 6.08. Undertaking to Pay Costs........................................................................... 65
ARTICLE VII
The Trustee
Section 7.01. Certain Duties and Responsibilities................................................................ 65
Section 7.02. Notice of Defaults................................................................................. 66
Section 7.03. Certain Rights of the Trustee...................................................................... 66
Section 7.04. Not Responsible for Statements or Issuance of Notes................................................ 67
Section 7.05. May Hold Notes..................................................................................... 67
Section 7.06. Monies to be Held in Trust......................................................................... 68
Section 7.07. Compensation and Reimbursement..................................................................... 68
Section 7.08. Disqualification; Conflicting Interests............................................................ 68
Section 7.09. Corporate Trustee Required; Eligibility............................................................ 69
Section 7.10. Resignation and Removal of Trustee; Appointment of Successor....................................... 69
Section 7.11. Acceptance of Appointment of Successor............................................................. 70
Section 7.12. Merger, Conversion, Consolidation or Succession to Business........................................ 71
Section 7.13. Preferential Collection of Claims Against Company.................................................. 71
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ARTICLE VIII
The Noteholders
Section 8.01. Action by Noteholders.............................................................................. 71
Section 8.02. Proof of Execution by Noteholders.................................................................. 71
Section 8.03. Who Are Deemed Absolute Owners..................................................................... 72
Section 8.04. Company-Owned Notes Disregarded.................................................................... 72
Section 8.05. Revocation of Consents, Future Holders Bound....................................................... 72
ARTICLE IX
Meetings of Noteholders
Section 9.01. Purpose of Meetings................................................................................ 73
Section 9.02. Call of Meetings by Trustee........................................................................ 73
Section 9.03. Call of Meetings by Company or Noteholders......................................................... 73
Section 9.04. Qualifications for Voting.......................................................................... 74
Section 9.05. Regulations........................................................................................ 74
Section 9.06. Voting............................................................................................. 74
Section 9.07. No Delay of Rights by Meeting...................................................................... 75
ARTICLE X
Supplemental Indentures
Section 10.01. Supplemental Indentures Without Consent of Noteholders............................................ 75
Section 10.02. Supplemental Indenture with Consent of Noteholders................................................ 76
Section 10.03. Effect of Supplemental Indenture.................................................................. 77
Section 10.04. Notation on Notes................................................................................. 77
Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee....................... 78
ARTICLE XI
Merger, Consolidation, Etc.
Section 11.01. Mergers, Consolidations and Certain Transfers, Leases and Acquisitions of Assets.................. 78
Section 11.02. Successor to Be Substituted....................................................................... 79
Section 11.03. Opinion of Counsel to Be Given Trustee............................................................ 79
ARTICLE XII
Satisfaction and Discharge of Indenture
Section 12.01. Termination of the Company's Obligations.......................................................... 79
Section 12.02. Defeasance and Discharge of Indenture............................................................. 80
Section 12.03. Deposited Monies to Be Held in Trust by Trustee................................................... 82
Section 12.04. Defeasance of Certain Obligations................................................................. 82
Section 12.05. Paying Agent to Repay Monies Held................................................................. 84
Section 12.06. Return of Unclaimed Monies........................................................................ 84
Section 12.07. Reinstatement..................................................................................... 84
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ARTICLE XIII
Immunity of Incorporators, Stockholders, Officers and Directors
Section 13.01. Indenture and Notes Solely Corporate Obligations.................................................. 84
ARTICLE XIV
Subordination of Notes
Section 14.01. Notes Subordinated to Senior Indebtedness......................................................... 85
Section 14.02. No Payment on Notes in Certain Circumstances...................................................... 85
Section 14.03. Payment over Proceeds upon Dissolution, Etc....................................................... 86
Section 14.04. Subrogation....................................................................................... 88
Section 14.05. Obligations of Company Unconditional.............................................................. 88
Section 14.06. Notice to Trustee................................................................................. 89
Section 14.07. Reliance on Judicial Order or Certificate of Liquidating Agent.................................... 90
Section 14.08. Trustee's Relation to Senior Indebtedness......................................................... 90
Section 14.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness.................................................................... 90
Section 14.10. Holders Authorize Trustee to Effectuate Subordination of Notes.................................... 90
Section 14.11. Not to Prevent Events of Default.................................................................. 91
Section 14.12. Trustee's Compensation Not Prejudiced............................................................. 91
Section 14.13. No Waiver of Subordination Provisions............................................................. 91
Section 14.14. Payments May Be Paid Prior to Dissolution......................................................... 91
Section 14.15. Trust Moneys Not Subordinated..................................................................... 91
ARTICLE XV
Miscellaneous Provisions
Section 15.01. Provisions Binding on Company's Successors........................................................ 92
Section 15.02. Official Acts by Successor Corporation............................................................ 92
Section 15.03. Addresses for Notices, Etc........................................................................ 92
Section 15.04. Governing Law..................................................................................... 92
Section 15.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee......................... 92
Section 15.06. Legal Holidays.................................................................................... 93
Section 15.07. Trust Indenture Act............................................................................... 93
Section 15.08. No Security Interest Created...................................................................... 93
Section 15.09. Benefits of Indenture............................................................................. 93
Section 15.10. Table of Contents, Headings, Etc.................................................................. 93
Section 15.11. Authenticating Agent.............................................................................. 94
Section 15.12. Execution in Counterparts......................................................................... 94
Section 15.13. Severability...................................................................................... 94
Exhibit A Form of Note.................................................................................. A-1
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INDENTURE
INDENTURE dated as of April 23, 2004 between AGCO Corporation,
a Delaware corporation (hereinafter called the "COMPANY"), and SunTrust Bank, a
Georgia banking corporation, as trustee hereunder (hereinafter called the
"TRUSTEE").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue of its 6-7/8% Senior Subordinated Notes due 2014
(hereinafter called the "NOTES"), in an aggregate principal amount not to exceed
(euro)200 million on the date hereof, and, to provide the terms and conditions
upon which the Notes are to be authenticated, issued and delivered, the Company
has duly authorized the execution and delivery of this Indenture;
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized; and
WHEREAS, this Indenture is subject to, and shall be governed
by, the provisions of the Trust Indenture Act of 1939, as amended, that are
required to be part of and to govern indentures qualified under the Trust
Indenture Act of 1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes by
the holders thereof, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective holders from time to time of
the Notes (except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section
1.01 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture that are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of the execution of this
Indenture. The words "herein", "hereof", "hereunder" and words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other Subdivision. The terms defined in this Article include the plural as well
as the singular.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by the Company or a Restricted Subsidiary and not Incurred
in connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition; provided that Indebtedness of such Person
which is redeemed, defeased, retired or otherwise repaid at the time of or
immediately upon consummation of the transactions by which such Person becomes a
Restricted Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"ADDITIONAL NOTES" has the meaning specified in Section 2.01.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period determined in conformity with GAAP; provided that the following items
shall be excluded in computing Adjusted Consolidated Net Income (without
duplication):
(i) the net income of any Person (other than net income
attributable to a Restricted Subsidiary) in which any Person (other
than the Company or any of its Restricted Subsidiaries) has a joint
interest and the net income of any Unrestricted Subsidiary, except to
the extent of the amount of dividends or other distributions actually
paid to the Company or any of its Restricted Subsidiaries by such other
Person or such Unrestricted Subsidiary during such period;
(ii) solely for the purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (C) of
paragraph (a) of Section 4.05 (and in such case, except to the extent
includable pursuant to clause (i) above), the net income (or loss) of
any Person accrued prior to the date it becomes a Restricted Subsidiary
or is merged into or consolidated with the Company or any of its
Restricted Subsidiaries or all or substantially all of the property and
assets of such Person are acquired by the Company or any of its
Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such net income is not
at the time permitted by the operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis)
attributable to Asset Sales;
(v) all compensation expense resulting from the
forgiveness of the exercise price of employee stock options and
compensation expense resulting from the grant of employee stock options
having an exercise price below the fair market value thereof;
(vi) except for purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (C) of
paragraph (a) of Section 4.05, any amount paid or accrued as dividends
on Preferred Stock of the Company or any Restricted Subsidiary owned by
Persons other than the Company and any of its Restricted Subsidiaries;
and
(vii) all extraordinary gains and extraordinary losses.
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"ADJUSTED CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of
assets of the Company and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in conformity with GAAP), after deducting
therefrom:
(i) all current liabilities of the Company and its
Restricted Subsidiaries (excluding intercompany items); and
(ii) all goodwill, trade names, trade-marks, patents,
unamortized debt discount and expense and other like intangibles, all
as set forth on the most recent quarterly or annual consolidated
balance sheet of the Company and its Restricted Subsidiaries, prepared
in conformity with GAAP and filed pursuant to Section 5.04.
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "CONTROLLING," "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"APPLICABLE TREASURY RATE", for any redemption date, means the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
Business Days prior to the Make-Whole Redemption Date of such Note (or, if such
Statistical Release is no longer published, any publicly available source of
similar market data)) most nearly equal to the period from the Make-Whole
Redemption Date to April 15, 2009; provided, however, that if the period from
the Make-Whole Redemption Date to April 15, 2009 is not equal to the constant
maturity of a United States Treasury security for which a weekly average yield
is given, the Applicable Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given except that
if the period from the Make-Whole Redemption Date to April 15, 2009 is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"ASSET ACQUISITION" means:
(i) an investment by the Company or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries; provided that
such Person's primary business is related, ancillary or complementary
to businesses of the Company and its Restricted Subsidiaries on the
date of such investment; or
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(ii) an acquisition by the Company or any of its
Restricted Subsidiaries of the property and assets of any Person other
than the Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person;
provided that the property and assets acquired are related, ancillary
or complementary to businesses of the Company and its Restricted
Subsidiaries on the date of such acquisition.
"ASSET DISPOSITION" means the sale or other disposition by the Company
or any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of:
(i) all or substantially all of the Capital Stock of any
Restricted Subsidiary of the Company; or
(ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.
"ASSET SALE" means any sale, transfer or other disposition (including
by way of merger, consolidation or Sale/Leaseback Transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of:
(i) all or any of the Capital Stock of any Restricted
Subsidiary;
(ii) all or substantially all of the property and assets
of an operating unit or business of the Company or any of its
Restricted Subsidiaries; or
(iii) any other property and assets of the Company or any
of its Restricted Subsidiaries (other than the Capital Stock or assets
of an Unrestricted Subsidiary) outside the ordinary course of business
of the Company or such Restricted Subsidiary and, in each case, that is
not governed by the provisions of Article XI;
provided that "Asset Sale" shall not include:
(A) sales or other dispositions of inventory, receivables
and other current assets;
(B) sales or other dispositions of assets for
consideration at least equal to the Fair Market Value of the assets
sold or disposed of, provided that the consideration received would
satisfy clause (b)(i)(B) of Section 4.11;
(C) a Permitted Investment or a Restricted Payment that
is permitted by Section 4.05;
(D) a single transaction or a series of related
transactions described in clauses (i), (ii) or (iii) above (a) that
have a Fair Market Value of less than $5 million or (b) for net
proceeds of less than $5 million; or
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(E) sales in connection with a Tax Abatement Transaction
permitted by this Indenture.
"ATTRIBUTABLE DEBT", in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Notes, compounded annually) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale/Leaseback Transaction (including any period for which such lease has
been extended).
"AVERAGE LIFE" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing
(i) the sum of the products of
(A) the number of years from such date of
determination to the dates of each successive scheduled
principal payment of such debt security and
(B) the amount of such principal payment by
(ii) the sum of all such principal payments.
"AGENT MEMBERS" has the meaning specified in Section 2.05(b).
"BOARD OF DIRECTORS" means the Board of Directors of the Company or a
committee of such Board of Directors duly authorized to act for it hereunder.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which the banking institutions in The City of New
York or the city in which the Corporate Trust Office is located are authorized
or obligated by law or executive order to close or be closed.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all Common Stock
and Preferred Stock.
"CAPITALIZED LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"CAPITALIZED LEASE OBLIGATIONS" means the discounted present value of
the rental obligations under any Capitalized Lease.
"CHANGE OF CONTROL" means such time as:
(i) a "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act) becomes the ultimate
"beneficial owner" (as defined in Rule 13d-3
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under the Exchange Act) of Voting Stock representing more than 35% of
the total voting power of the total Voting Stock of the Company on a
fully diluted basis; or
(ii) individuals who on the Closing Date constitute the
Board of Directors (together with any new directors whose election by
the Board of Directors or whose nomination for election by the
Company's stockholders was approved by a vote of at least a majority of
the members of the Board of Directors then in office who either were
members of the Board of Directors on the Closing Date or whose election
or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board of
Directors then in office.
"CLOSING DATE" means the date on which the Notes are originally issued
under this Indenture.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON STOCK" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"COMPANY" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article XI, shall
include its successors and assigns.
"CONSOLIDATED CASH FLOW" means, for any period, the sum of the amounts
for such period of
(i) Adjusted Consolidated Net Income,
(ii) Consolidated Interest Expense, to the extent such
amount was deducted in calculating Adjusted Consolidated Net Income,
(iii) income taxes, to the extent such amount was deducted
in calculating Adjusted Consolidated Net Income (other than income
taxes (either positive or negative) attributable to extraordinary and
non-recurring gains or losses or sales of assets),
(iv) depreciation expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income,
(v) amortization expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income, and
(vi) all other non-cash items reducing Adjusted
Consolidated Net Income (other than items that will require cash
payments and for which an accrual or reserve is,
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or is required by GAAP to be, made, and other than those non-cash items
added back in calculating Adjusted Consolidated Net Income pursuant to
the definition thereof), less all non-cash items increasing Adjusted
Consolidated Net Income, all as determined on a consolidated basis for
the Company and its Restricted Subsidiaries in conformity with GAAP;
provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated Cash Flow shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to
(A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by
(B) the quotient of (1) the number of shares of outstanding
Common Stock of such Restricted Subsidiary not owned on the last day of
such period by the Company or any of its Restricted Subsidiaries
divided by (2) the total number of shares of outstanding Common Stock
of such Restricted Subsidiary on the last day of such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the aggregate
amount of interest in respect of Indebtedness (including amortization of
original issue discount on any Indebtedness and the interest portion of any
deferred payment obligation, calculated in accordance with the effective
interest method of accounting; all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements; and
Indebtedness that is Guaranteed or secured by the Company or any of its
Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or to be accrued by the Company and its Restricted Subsidiaries during such
period;
excluding, however,
(i) any amount of such interest of any Restricted Subsidiary
if the net income of such Restricted Subsidiary is excluded in the
calculation of Adjusted Consolidated Net Income pursuant to clause
(iii) of the definition thereof (but only in the same proportion as the
net income of such Restricted Subsidiary is excluded from the
calculation of Adjusted Consolidated Net Income pursuant to clause
(iii) of the definition thereof); and
(ii) any premiums, fees and expenses (and any amortization
thereof) payable in connection with the offering of the Notes, all as
determined on a consolidated basis (without taking into account
Unrestricted Subsidiaries) in conformity with GAAP.
"CONVERTIBLE NOTE INDENTURE" means the Indenture dated December 23,
2003 by and between the Company and SunTrust Bank, as trustee.
"CONVERTIBLE NOTES" shall mean those certain 1 3/4% Convertible Senior
Subordinated Notes due 2033 issued under the Convertible Note Indenture.
"CORPORATE TRUST OFFICE" means the designated office of the Trustee, in
the Borough of Manhattan, The City of New York, which office is at the date
hereof located at c/o
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Computershare Trust Company of New York, 88 Pine Street, Wall Street Plaza, 19th
Floor, New York, New York 10005.
"CREDIT FACILITY" means one or more debt facilities, commercial paper
facilities, indentures or other agreements, in each case with banks or other
institutional lenders or trustees or investors, providing for revolving credit
loans, term loans, notes, and/or letters of credit, together with any related
documents thereto (including, without limitation, any guarantees and security
documents), in each case as such facility or facilities may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreements extending the maturity of,
refinancing, replacing (whether or not contemporaneously) or otherwise
restructuring all or any portion of the Indebtedness under any such agreement or
any successor or replacement agreement and whether by the same or any other
agent, lender or group of lenders or investors and whether such refinancing is
under one or more debt facilities.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values to or
under which the Company or any of its Subsidiaries is a party or a beneficiary
on the date hereof or thereafter.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"DEFAULT" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.03.
"DEPOSITARY" means the clearing agency registered under the Exchange
Act that is designated to act as the Depositary for the Global Notes. DTC shall
be the initial Depositary, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this Indenture, and
thereafter, "Depositary" shall mean or include such successor.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness and all
monetary obligations (including expenses, fees and other monetary obligations)
under a Credit Facility and (ii) any other Indebtedness constituting Senior
Indebtedness that, at any date of determination, has an aggregate principal
amount of at least $25 million and is specifically designated by the Company in
the instrument creating or evidencing such Senior Indebtedness as "Designated
Senior Indebtedness."
"DTC" means The Depository Trust Company.
"EVENT OF DEFAULT" means any event specified in Section 6.01 as an
Event of Default.
"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.
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"EXISTING CREDIT FACILITY" means the Credit Agreement dated as of
December 22, 2003 by and among the Company, certain Subsidiaries named therein,
the lenders, and arrangers named therein, SunTrust Bank and Morgan Stanley
Senior Funding, Inc. as Co-Syndication Agents, Cobank, ACB and The Bank of
Tokyo-Mitsubishi, Ltd., NY Branch, as Co-Documentation Agents, Cooperatieve
Centrale Raiffeisen-Boerenleenbank, B.A., "Rabobank Nederland", Canadian Branch,
as Canadian Administrative Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank, B.A., "Rabobank Nederland", New York Branch, as
Administrative Agent, together with all agreements, instruments and documents
executed or delivered pursuant thereto or in connection therewith, in each case
as such agreements, documents or instruments may be amended, restated, amended
and restated, supplemented, extended, renewed, replaced or otherwise modified
from time to time and regardless of the extent to which the participants therein
may change.
"FAIR MARKET VALUE" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by one or more members of the senior management of
the Company.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations contained or referred
to in this Indenture shall be computed in conformity with GAAP applied on a
consistent basis, except that calculations made for purposes of determining
compliance with the terms of the covenants and with other provisions of this
Indenture shall be made without giving effect to the amortization of any
premiums, fees or expenses incurred in connection with the offering of the
Notes.
"GLOBAL NOTE" has the meaning specified in Section 2.02.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person:
(i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such other Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, or to maintain financial statement conditions or otherwise);
or
(ii) entered into for purposes of assuring in any other manner
the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in
whole or in part);
provided that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business or non-binding comfort letters
limited to corporate intent or policies. The term Guarantee used as a verb has a
corresponding meaning.
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"INCUR" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Indebtedness by reason of a Person
becoming a Restricted Subsidiary of the Company; provided that neither the
accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"INDEBTEDNESS" means, with respect to any Person at any date of
determination (without duplication):
(i) all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (other than any
non-negotiable notes issued to insurance carriers in lieu of
maintenance of policy reserves in connection with workers' compensation
and liability insurance programs);
(iii) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement
obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit)
securing obligations (other than obligations described in clauses (i)
or (ii) above or clauses (v), (vi) or (vii) below) entered into in the
ordinary course of business of such Person to the extent such letters
of credit are not drawn upon or, if drawn upon, to the extent such
drawing is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement);
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, which purchase price is
due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such
services, except Trade Payables;
(v) all obligations of such Person as lessee under Capitalized
Leases;
(vi) all obligations of such Person under Currency Agreements,
Interest Rate Agreements, forward contracts, options, future contracts,
future options or similar agreements or arrangements that are entered
into outside the ordinary course of business and not designed solely to
protect such Person against fluctuations in foreign currency exchange
rates or interest rates;
(vii) all Indebtedness of the type described in clauses (i)
through (vi) above of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such
Person; provided that the amount of such Indebtedness shall be the
lesser of (A) the Fair Market Value of such asset at such date of
determination and (B) the amount of such Indebtedness; and
(viii) all Indebtedness of the type described in clauses (i)
through (vii) above of other Persons Guaranteed by such Person to the
extent such Indebtedness is Guaranteed by such Person.
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The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, provided that:
(A) the amount outstanding at any time of any Indebtedness
issued with original issue discount is the face amount of such
Indebtedness; and
(B) Indebtedness shall not include (1) any liability for
federal, state, local or other taxes or (2) any obligations of such
Person pursuant to Receivables Programs to the extent such obligations
are nonrecourse to such Person and its Subsidiaries.
"INDENTURE" means this instrument as originally executed or, if amended
or supplemented as herein provided, as so amended or supplemented.
"INTEREST" means, when used with reference to the Notes, any interest
payable under the terms of the Notes.
"INTEREST COVERAGE RATIO" means, on any Transaction Date, the ratio of
(i) the aggregate amount of Consolidated Cash Flow for the
then most recent four fiscal quarters prior to such Transaction Date
for which reports have been filed with the SEC pursuant to Section 5.04
(the "FOUR QUARTER PERIOD") to
(ii) the aggregate Consolidated Interest Expense during such
Four Quarter Period.
In making the foregoing calculation:
(A) pro forma effect shall be given to any Indebtedness
Incurred or repaid during the period (the "REFERENCE PERIOD")
commencing on the first day of the Four Quarter Period and ending on
the Transaction Date (other than Indebtedness Incurred or repaid under
a revolving credit or similar arrangement to the extent of the
commitment thereunder (or under any predecessor revolving credit or
similar arrangement) in effect on the last day of such Four Quarter
Period unless any portion of such Indebtedness is projected, in the
reasonable judgment of the senior management of the Company, to remain
outstanding for a period in excess of 12 months from the date of the
Incurrence thereof), in each case as if such Indebtedness had been
Incurred or repaid on the first day of such Reference Period;
(B) Consolidated Interest Expense attributable to interest on
any Indebtedness (whether existing or being Incurred) computed on a pro
forma basis and bearing a floating interest rate shall be computed as
if the rate in effect on the Transaction Date (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months or,
if shorter, at least equal to the remaining term of such Indebtedness)
had been the applicable rate for the entire period;
-11-
(C) pro forma effect shall be given to Asset Dispositions and
Asset Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition and including any pro
forma expense and cost reductions related to any Asset Acquisitions
calculated on a basis consistent with Regulation S-X under the Exchange
Act) that occur during such Reference Period as if they had occurred
and such proceeds had been applied on the first day of such Reference
Period; and
(D) pro forma effect shall be given to asset dispositions and
asset acquisitions (including giving pro forma effect to the
application of proceeds of any asset disposition and including any pro
forma expense and cost reductions related to any Asset Acquisitions
calculated on a basis consistent with Regulation S-X under the Exchange
Act) that have been made by any Person that has become a Restricted
Subsidiary or has been merged with or into the Company or any
Restricted Subsidiary during such Reference Period and that would have
constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted Subsidiary as
if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions that occurred on the first day of
such Reference Period;
provided that to the extent that clause (C) or (D) of this sentence requires
that pro forma effect be given to an Asset Acquisition or Asset Disposition,
such pro forma calculation shall be based upon the four full fiscal quarters
immediately preceding the Transaction Date of the Person, or division or line of
business of the Person, that is acquired or disposed for which financial
information is available.
"INTEREST RATE AGREEMENT" means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement or other similar agreement or arrangement designed
to protect the Company or any of its Subsidiaries against fluctuations in
interest rates to or under which the Company of any of its Subsidiaries is a
party or beneficiary or becomes a party or a beneficiary hereafter.
"INVESTMENT" in any Person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall
include:
(i) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary; and
(ii) the Fair Market Value of the Capital Stock (or any other
Investment), held by the Company or any of its Restricted Subsidiaries,
of (or in) any Person that has ceased to be a Restricted Subsidiary,
including without limitation, by reason of any transaction permitted by
clause (iii) of Section 4.07; provided, however, that appreciation
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in the value of an Investment previously permitted by the terms of this
Indenture shall not of itself constitute an Investment.
For purposes of the definition of "Unrestricted Subsidiary" and Section
4.05:
(A) "Investment" shall include the Fair Market Value of the
assets (net of liabilities other than liabilities to the Company or any
of its Restricted Subsidiaries) of any Restricted Subsidiary at the
time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary;
(B) the Fair Market Value of the assets (net of liabilities
other than liabilities to the Company or any of its Restricted
Subsidiaries) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary shall be
considered a reduction in outstanding Investments; and
(C) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of such
transfer.
"INVESTMENT GRADE RATING" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's and BBB- (or the equivalent) by S&P.
"INVESTMENT GRADE STATUS" shall be deemed to have been reached on the
date that the Notes have an Investment Grade Rating from both Rating Agencies,
provided that no Default or Event of Default has occurred and is continuing on
such date.
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof or any agreement
to give any security interest to the extent that the obligation to do so has
arisen).
"MAKE-WHOLE PREMIUM" means, as to each Note, an amount equal to the
greater of (i) 1.0% of the principal amount of such Note and (ii) the excess of
(x) the present value of the sum of the principal amount and premium that would
be payable on such Note on April 15, 2009 had such Note been redeemed pursuant
to the first paragraph of Section 3.01, and all remaining interest payments to
and including April 15, 2009 (but excluding any interest accrued to the
Make-Whole Redemption Date), discounted on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) from April 15, 2009 to the
Make-Whole Redemption Date at a per-annum interest rate equal to the Applicable
Treasury Rate on such Make-Whole Redemption Date plus 0.50% over (y) the
outstanding principal amount of such Note.
"MAKE-WHOLE REDEMPTION DATE" with respect to a Make-Whole Redemption,
means the date such Make-Whole Redemption is effected.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
-13-
"NET CASH PROCEEDS" means:
(i) with respect to any Asset Sale, the proceeds of such Asset
Sale in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to
the principal, but not interest, component thereof) when received in
the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary) and proceeds from the conversion of other
property received when converted to cash or cash equivalents, net of:
(A) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment
bankers) related to such Asset Sale;
(B) provisions for all taxes (whether or not such
taxes will actually be paid or are payable) as a result of
such Asset Sale without regard to the consolidated results of
operations of the Company and its Restricted Subsidiaries
taken as a whole;
(C) payments made to repay Indebtedness or any other
obligation outstanding at the time of such Asset Sale that
either (1) is secured by a Lien on the property or assets sold
or (2) is required to be paid as a result of such sale; and
(D) appropriate amounts to be provided by the Company
or any Restricted Subsidiary of the Company as a reserve
against any liabilities associated with such Asset Sale,
including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale,
all as determined in conformity with GAAP; and
(ii) with respect to any issuance or sale of Capital Stock,
the proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary) and proceeds
from the conversion of other property received when converted to cash
or cash equivalents, net of attorney's fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof.
"NOTE" or "NOTES" has the meaning specified in the recitals hereof, and
includes both Original Notes and Additional Notes that are executed and
delivered under this Indenture.
"NOTE REGISTER" has the meaning specified in Section 2.05(a).
"NOTE REGISTRAR" has the meaning specified in Section 2.05(a).
-14-
"NOTEHOLDER" or "HOLDER" as applied to any Note, or other similar terms
(but excluding the term "beneficial holder"), means any Person in whose name at
the time a particular Note is registered on the Note registrar's books.
"OFFER TO PURCHASE" means an offer to purchase Notes by the Company
from the holders commenced by mailing a notice to the Trustee and each holder
stating:
(i) the covenant pursuant to which the offer is being made and
that all Notes validly tendered will be accepted for payment on a pro
rata basis;
(ii) the purchase price and the date of purchase (which shall
be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed) (the "payment date");
(iii) that any Note not tendered will continue to accrue
interest pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest on and after the payment date;
(v) that holders electing to have a Note purchased pursuant to
the Offer to Purchase will be required to surrender the Note, together
with the form entitled "Option of the Holder to Elect Purchase" on the
reverse side of the Note completed, to the paying agent at the address
specified in the notice prior to the close of business on the Business
Day immediately preceding the payment date;
(vi) that holders will be entitled to withdraw their election
if the paying agent receives, not later than the close of business on
the third Business Day immediately preceding the payment date, a
telegram, facsimile transmission or letter setting forth the name of
such holder, the principal amount of Notes delivered for purchase and a
statement that such holder is withdrawing his election to have such
Notes purchased; and
(vii) that holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of
(euro)1,000 or integral multiples thereof.
On the payment date, the Company shall:
(A) accept for payment on a pro rata basis Notes or portions
thereof tendered pursuant to an Offer to Purchase;
(B) deposit with the paying agent money sufficient to pay the
purchase price of all Notes or portions thereof so accepted; and
-15-
(C) deliver, or cause to be delivered, to the Trustee all
Notes or portions thereof so accepted together with an Officers'
Certificate specifying the Notes or portions thereof accepted for
payment by the Company.
The paying agent shall promptly mail to the holders of Notes so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such holders a new Note equal in principal
amount to any unpurchased portion of the Note surrendered; provided that each
Note purchased and each new Note issued shall be in a principal amount of
(euro)1,000 or integral multiples thereof. The Company will publicly announce
the results of an Offer to Purchase as soon as practicable after the payment
date. The Trustee shall act as the paying agent for an Offer to Purchase. The
Company will comply with Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that the Company is required to
repurchase Notes pursuant to an Offer to Purchase.
"OFFICER" means any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"OFFICERS' CERTIFICATE" of the Company means a certificate signed by
the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the Chief Executive Officer, the President or a Vice President or the
Chief Financial Officer, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, as the case may be, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 4.21 shall be the principal executive, financial or
accounting officer of the Company or the chief operating officer of the Company.
Unless the context otherwise requires, each reference herein to an "Officers'
Certificate" shall mean an Officers' Certificate of the Company. References
herein, or in any Note, to any officer of a Person that is a partnership shall
mean such officer of the partnership or, if none, of a general partner of the
partnership authorized thereby to act on its behalf.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or other counsel
reasonably acceptable to the Trustee.
"OPTIONAL REDEMPTION" has the meaning specified in Section 3.01.
"ORIGINAL NOTES" has the meaning specified in Section 2.01.
"OUTSTANDING", when used with reference to Notes and subject to the
provisions of Section 8.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
-16-
(b) Notes, or portions thereof, (i) for the redemption of
which monies in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or
(ii) which shall have been otherwise discharged in accordance with
Article XII; and
(c) Notes in lieu of which, or in substitution for which,
other Notes shall have been authenticated and delivered pursuant to the
terms of Section 2.06.
"PERMITTED INVESTMENT" means:
(i) an Investment in the Company or a Restricted Subsidiary or
a Person which will, upon the making of such Investment, become a
Restricted Subsidiary or be merged or consolidated with or into or
transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary, provided that such Person's primary
business is related, ancillary or complementary to businesses of the
Company and its Restricted Subsidiaries on the date of such Investment;
(ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated
as expenses in accordance with GAAP;
(iv) loans or advances to employees (other than executive
officers and directors) made in the ordinary course of business in
accordance with past practice of the Company or its Restricted
Subsidiaries and that do not in the aggregate exceed $3 million at any
time outstanding;
(v) stock, obligations or securities received in satisfaction
of judgments or in settlement of claims arising in the ordinary course
of business;
(vi) any Investment acquired as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and
in compliance with Section 4.11;
(vii) Currency Agreements and Interest Rate Agreements that
are used solely as part of normal business operations as a risk
management strategy and/or hedge against charges resulting from market
operations in accordance with the Company's customary policies and not
as a means to speculate for investment purposes or trends and shifts in
financial or commodities markets;
(viii) any Investment in bonds in connection with a Tax
Abatement Transaction; and
(ix) any Investment in the form of a Guarantee by the Company
or any Restricted Subsidiary of any Indebtedness of the Company or any
Restricted Subsidiary permitted to be incurred hereunder.
-17-
"PERMITTED LIENS" means:
(i) Liens on assets of the Company and its Restricted
Subsidiaries, whether owned on the Closing Date or thereafter acquired,
securing Senior Indebtedness;
(ii) Liens in favor of the Company or a Restricted Subsidiary;
(iii) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business;
(iv) Liens on assets of Restricted Subsidiaries to secure
Indebtedness of Restricted Subsidiaries that was permitted by the terms
of this Indenture to be Incurred;
(v) Liens existing on the Closing Date;
(vi) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
conducted; provided that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(vii) Liens on receivables, payment intangibles and related
property to reflect sales of receivables or payment intangibles
pursuant to a Receivables Program;
(viii) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are either within the general parameters
customary in the industry and incurred in the ordinary course of
business, in each case, securing Indebtedness under Interest Rate
Agreements and Currency Agreements and forward contracts, options,
future contracts, future options or similar agreements or arrangements
designed solely to protect the Company or any of its Restricted
Subsidiaries from fluctuations in interest rates, currencies or the
price of commodities;
(ix) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company
or its Restricted Subsidiaries relating to such property or assets;
(x) Liens on property of, or on shares of stock or
Indebtedness of, any Person existing at the time such Person becomes,
or becomes a part of, any Restricted Subsidiary; provided that such
Liens do not extend to or cover any property or assets of the Company
or any Restricted Subsidiary other than the property or assets acquired
and proceeds therefrom;
(xi) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating
to such letters of credit and the products and proceeds thereof;
-18-
(xii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(xiii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into
by the Company or any of its Restricted Subsidiaries in the ordinary
course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Closing Date;
(xiv) Liens (including extensions and renewals thereof) upon
real or personal property acquired after the Closing Date; provided
that (A) such Lien is created solely for the purpose of securing
Indebtedness Incurred, in accordance with Section 4.03, (1) to finance
the cost (including the cost of improvement or construction) of the
item of property or assets subject thereto and such Lien is created
prior to, at the time of or within six months after the later of the
acquisition, the completion of construction or the commencement of full
operation of such property or (2) to refinance any Indebtedness
previously so secured, (B) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such cost and (C) any such
Lien shall not extend to or cover any property or assets other than
such item of property or assets and any improvements on such item;
(xv) Liens to secure Attributable Debt in respect of a
Sale/Leaseback Transaction that is permitted under Section 4.12;
(xvi) any interest or title of a lessor in the property
subject to any Capitalized Lease or operating lease;
(xvii) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(xviii) Statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in good faith
by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made;
(xix) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security;
(xx) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, government contracts, performance
and return-of-money bonds and other obligations of a similar nature
incurred in the ordinary course of business (exclusive of obligations
for the payment of borrowed money);
(xxi) Easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or other
irregularities that do not materially interfere
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with the ordinary course of business of the Company or any of its
Restricted Subsidiaries;
(xxii) Leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the
Company and its Restricted Subsidiaries, taken as a whole; and
(xxiii) Liens arising from the rendering of a final judgment
or order against the Company or any Restricted Subsidiary that does not
give rise to an Event of Default.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"PREMIUM" means any premium payable under the terms of the Notes.
"PRINCIPAL" of a debt security, including the Notes, means the
principal amount due on the Stated Maturity as shown on such debt security.
"PRINCIPAL CORPORATE TRUST OFFICE" means the designated office of the
Trustee at which its corporate trust business as it relates to this Indenture
shall be principally administered at any particular time, which office at the
date hereof is located at 25 Park Place, NE, 24th Floor, Atlanta, Georgia 30303.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company or any
of its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price or cost of
installation, construction or improvement of any property or equipment.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Redeemable Stock.
"RATING AGENCIES" means Moody's and S&P.
"RECEIVABLES PROGRAM" means, with respect to any Person, any accounts
receivable securitization or factoring program pursuant to which such Person
receives proceeds pursuant to a pledge, sale or other encumbrance of its
accounts receivable or payment intangibles.
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"RECORD DATE" has the meaning specified in Section 2.03 with respect to
any interest payment date, and for any other purpose means the record date
established by the Company for a specified purpose.
"REDEEMABLE STOCK" means any class or series of Capital Stock of any
Person that by its terms or otherwise is:
(i) required to be redeemed prior to the Stated Maturity of
the Notes;
(ii) redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to the Stated Maturity of the
Notes; or
(iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or Indebtedness having a
scheduled maturity prior to the Stated Maturity of the Notes;
provided that any Capital Stock that would not constitute Redeemable Stock but
for provisions thereof giving holders thereof the right to require such Person
to repurchase or redeem such Capital Stock upon the occurrence of an "asset
sale" or "change of control" occurring prior to the Stated Maturity of the Notes
shall not constitute Redeemable Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Section 4.11 and Section
4.13 and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Notes as are required to be repurchased pursuant to
Section 4.11 and Section 4.13.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"SALE/LEASEBACK TRANSACTION" means an agreement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it back from such Person, provided that Sale/Leaseback Transaction shall
not include any Tax Abatement Transaction.
"SECURED INDEBTEDNESS" means any Indebtedness of the Company secured by
a Lien.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"SENIOR INDEBTEDNESS" means the following obligations of the Company,
whether outstanding on the date of this Indenture or thereafter Incurred:
(i) all Indebtedness and all other monetary obligations
(including, without limitation, expenses, fees, claims,
indemnifications, reimbursements, liabilities and other monetary
obligations and any obligation to deliver cash as collateral security
for contingent reimbursement obligations in respect of outstanding
letters of credit of the Company) under a Credit Facility (including
the Existing Credit Facility), any Interest
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Rate Agreement or Currency Agreement and the Company's Guarantee of any
Indebtedness or monetary obligation of any of its Subsidiaries under
any Interest Rate Agreement or Currency Agreement; and
(ii) all other Indebtedness of the Company, including
principal and interest on such Indebtedness, unless such Indebtedness,
by its terms or by the terms of any agreement or instrument pursuant to
which such Indebtedness is issued, is pari passu with, or subordinated
in right of payment to, the Notes;
provided that the term "Senior Indebtedness" shall not include:
(a) any Indebtedness of the Company that, when Incurred, and
without respect to any election under Section 1111(b) of the United
States Bankruptcy Code, was without recourse to the Company;
(b) any Indebtedness of the Company that by its express terms
is not senior to the Notes or is pari passu or junior to the Notes;
(c) any Indebtedness of the Company to any of its Subsidiaries
or to a joint venture in which the Company has an interest;
(d) any Indebtedness of the Company not permitted by this
Indenture;
(e) any repurchase, redemption or other obligation in respect
of Redeemable Stock;
(f) any Indebtedness of the Company to any employee, officer
or director of the Company or any of its Subsidiaries;
(g) any liability for federal, state, local or other taxes
owned or owning by the Company;
(h) any Trade Payables of the Company;
(i) the Convertible Notes; or
(j) the Notes.
Senior Indebtedness will also include interest accruing subsequent to
events of bankruptcy of the Company and its Subsidiaries at the rate provided
for in the document governing such Senior Indebtedness, whether or not such
interest is an allowed claim enforceable against the debtor in a bankruptcy case
under federal bankruptcy law or similar laws relating to insolvency. For
purposes of clause (d) of the immediately preceding proviso, a good faith
determination by the Chief Financial Officer of the Company, evidenced by an
Officer's Certificate, that any Indebtedness was permitted by this Indenture
shall be conclusive.
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It is the intent of the Company that the Notes shall rank pari passu
with the Convertible Notes.
"SENIOR NOTE INDENTURE" means the indenture dated April 17, 2001 among
the Company, as issuer, AGCO Ventures LLC, Hesston Ventures Corporation, Hay &
Forage Industries, Ag-Chem Equipment Co., Inc., Ag-Chem Manufacturing Co., Inc.,
Ag-Chem Sales Co., Inc., Ag-Chem Equipment International, Inc., Lor*Al Products,
Inc. and Ag-Chem Equipment Canada, Ltd., as subsidiary guarantors, and SunTrust
Bank, as trustee.
"SENIOR NOTES" means the 9-1/2% senior notes due May 1, 2008 issued by
the Company under the Senior Note Indenture.
"SENIOR SUBORDINATED NOTES" means the 8-1/2% Senior Subordinated Notes
due 2006 issued pursuant to the Indenture, dated as of March 20, 1996, among the
Company and SunTrust Bank, as trustee.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries:
(i) for the most recent fiscal year of the Company, accounted
for more than 10% of the consolidated revenues of the Company and its
Restricted Subsidiaries; or
(ii) as of the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of the Company and its Restricted
Subsidiaries;
all as set forth on the most recently available consolidated financial
statements of the Company for such fiscal year.
"S&P" means Standard & Poor's, a division of The McGraw Hill Companies,
and its successors.
"STATED MATURITY" means:
(i) with respect to any debt security, the date specified in
such debt security as the fixed date on which the final installment of
principal of such debt security is due and payable; and
(ii) with respect to any scheduled installment of principal of
or interest on any debt security, the date specified in such debt
security as the fixed dated on which such installment is due and
payable.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"TAX ABATEMENT TRANSACTION" means any revenue bond financing
arrangement between any Person and a development authority or other similar
governmental authority or entity for the purpose of providing ad valorem
property tax abatement to such Person whereby (i) the
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development authority issues revenue bonds to finance the acquisition of
property that is now owned or hereafter acquired by the Company or a Restricted
Subsidiary, (ii) the property so transferred is leased back by the Company or
such Restricted Subsidiary, (iii) the bonds issued to finance the acquisition
are owned by the Company or a Restricted Subsidiary, (iv) the rental payments on
the lease and the debt service payments on the bonds are substantially equal and
(v) the Company or such Restricted Subsidiary has the option to prepay the
bonds, terminate its lease and reacquire the property for nominal consideration
at any time; provided that if at any time any of the foregoing conditions shall
cease to be satisfied, such transaction shall cease to be a Tax Abatement
Transaction and the transaction must satisfy Section 4.12.
"TEMPORARY CASH INVESTMENT" means any of the following:
(i) direct obligations of the United States of America or any
agency thereof or obligations fully and unconditionally guaranteed by
the United States of America or any agency thereof;
(ii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the
laws of the United States of America, any state thereof or any foreign
country recognized by the United States, and which bank or trust
company has capital, surplus and undivided profits aggregating in
excess of $200 million (or the foreign currency equivalent thereof) and
has outstanding debt which is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act)
or any money-market fund sponsored by a registered broker dealer or
mutual fund distributor;
(iii) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in
clause (ii) above;
(iv) commercial paper, maturing not more than 90 days after
the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-1" (or higher) according
to Moody's or "A-1" (or higher) according to S&P; and
(v) securities with maturities of six months or less from the
date of acquisition issued or fully and unconditionally guaranteed by
any state, commonwealth or territory of the United States of America,
or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or Moody's.
"TRADE PAYABLES" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services.
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"TRANSACTION DATE" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939,
as amended, as it was in force at the date of this Indenture; provided that if
the Trust Indenture Act of 1939 is amended after the date hereof, the term
"Trust Indenture Act" shall mean, to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means SunTrust Bank, a Georgia banking corporation, and its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
"UNRESTRICTED SUBSIDIARY" means:
(i) AGCO Acceptance Corporation and its successors, provided
in the case of any such successor that the property and assets of such
successor at the time it becomes an Unrestricted Subsidiary do not
include any property or assets of the Company or any of its Restricted
Subsidiaries;
(ii) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and
(iii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Restricted Subsidiary
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, the Company or any Restricted
Subsidiary; provided that:
(A) any Guarantee by the Company or any Restricted Subsidiary
of any Indebtedness of the Subsidiary being so designated shall be
deemed an "Incurrence" of such Indebtedness by the Company or such
Restricted Subsidiary (or both, if applicable) at the time of such
designation;
(B) either (1) the Subsidiary to be so designated has total
assets of $1,000 or less or (2) if such Subsidiary has assets greater
than $1,000, such designation would be permitted under Section 4.05;
and
(C) if applicable, the Incurrence of Indebtedness referred to
in clause (A) of this proviso would be permitted under Section 4.03.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that immediately after giving
effect to such designation:
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(x) the Company could Incur $1.00 of additional Indebtedness
under paragraph (a) of Section 4.03, and
(y) no Default or Event of Default shall have occurred and be
continuing.
Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"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 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.
"VOTING STOCK" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) by such Person or one or more Wholly Owned Subsidiaries of such
Person.
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ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation, Amount and Issue of Notes. The
Notes shall be designated as set forth in Exhibit A. The payment of obligations
of the Company under the Notes shall be subordinated to the Company's Senior
Indebtedness, including the obligation of the Company under the Senior Notes and
the Existing Credit Facility and shall rank pari passu with the obligations of
the Company under the Senior Subordinated Notes and the Convertible Notes. The
aggregate principal amount of Notes that may be authenticated and delivered
under this Indenture is unlimited. Notes not to exceed the aggregate principal
amount of (euro)200 million (the "ORIGINAL NOTES") upon the execution of this
Indenture may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Notes to or upon the written order of the Company, signed by its Chairman of the
Board of Directors, Vice Chairman of the Board of Directors, Chief Executive
Officer, President, Chief Financial Officer or any Vice President, without any
further action by the Company hereunder. In addition, subject to the provisions
of Section 15.05, an unlimited aggregate principal amount of additional Notes
(the "ADDITIONAL NOTES") may be executed after the date of this Indenture by the
Company and delivered to the Trustee for authentication, and the Trustee shall,
upon receipt of an Officers' Certificate specifying the amount of Notes to be
authenticated and the date on which such Notes are to be authenticated and
certifying that all conditions precedent to the issuance of the Additional Notes
contained herein have been complied with and that no default or Event of Default
would occur as a result of the issuance of such Additional Notes, authenticate
and deliver said Additional Notes to or upon the written order of the Company,
signed as set forth in the preceding sentence; provided that Additional Notes
may be issued under this Indenture only if such Additional Notes and the
Original Notes constitute one series for United States Federal income tax
purposes. The Original Notes and the Additional Notes, if any, shall constitute
one series for all purposes under this Indenture, including, without limitation,
amendments, waivers and redemptions.
Section 2.02. Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be substantially
in the form set forth in Exhibit A. The terms and provisions contained in the
form of Note attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks
of identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required law, stock exchange requirements to which
the Company is subject or usage.
So long as the Notes are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, or otherwise
contemplated by Section 2.05(b), all of the Notes will be represented by one or
more Notes in global form registered in the name of the Depositary or the
nominee of the Depositary (a "GLOBAL NOTE"). The transfer and exchange of
beneficial interests in any such Global Note shall be effected through the
Depositary in accordance with
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this Indenture and the applicable procedures of the Depositary. Except as
provided in Section 2.05(b), beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive form and
will not be considered holders of such Global Note.
Any Global Note shall represent such of the outstanding Notes
as shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be increased or reduced to reflect redemptions, repurchases, transfers
or exchanges permitted hereby. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon written instructions given by
the holder of such Notes in accordance with this Indenture. Payment of principal
of and interest and premium, if any, on any Global Note shall be made to the
holder of such Global Note.
Section 2.03. Date and Denomination of Notes; Payments of
Interest. Subject to Section 2.02, the Notes shall be issuable in registered
form without coupons in denominations of (euro)1,000 principal amount and
multiples thereof. Each Note shall be dated the date of its authentication and
shall bear interest from the date specified on the face of the form of Note
attached as Exhibit A hereto. Interest on the Notes shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is
registered on the Note register at the close of business on any record date with
respect to any interest payment date shall be entitled to receive the interest
payable on such interest payment date, except that the interest payable upon
redemption or repurchase will be payable to the Person to whom principal is
payable pursuant to such redemption or repurchase (unless the redemption date or
the repurchase date, as the case may be, is an interest payment date, in which
case the semi-annual payment of interest becoming due on such date shall be
payable to the holders of such Notes registered as such on the applicable record
date). Interest shall be payable at the office of the Company maintained by the
Company for such purposes in the Borough of Manhattan, The City of New York,
which shall initially be the Corporate Trust Office of the Trustee, or, so long
as the Notes are listed on the Luxembourg Stock Exchange, the office of a paying
agent designated by the Company in accordance with the requirements of the
Luxembourg Stock Exchange, and may, as the Company shall specify to the paying
agent in writing by each record date, be paid either (i) by check mailed to the
address of the Person entitled thereto as it appears in the Note register
(provided that any holder of Notes with an aggregate principal amount in excess
of (euro)2,000,000 shall, at the written election of such holder (such election
to be made prior to the relevant record date and to contain appropriate wire
transfer information), be paid by wire transfer in immediately available funds)
or (ii) by transfer to an account maintained by such Person located in the
United States; provided that payments to the Depositary will be made by wire
transfer of immediately available funds to the account of the Depositary or its
nominee. The term "RECORD DATE" with respect to any interest payment date shall
mean the April 1 or October 1 preceding the applicable April 15 or October 15
interest payment date, respectively.
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Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any April 15 or October 15 (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the
Noteholder on the relevant record date by virtue of his having been such
Noteholder, and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall provide an Officers'
Certificate to the Trustee specifying the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment
(which shall be not less than twenty-five (25) days after the receipt
by the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall be not more
than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment, and not less than ten (10) days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first-class postage prepaid, to each
holder at his address as it appears in the Note register, not less than
ten (10) days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on such special record
date and shall no longer be payable pursuant to the following clause
(2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes
may be listed or designated for issuance, and upon such notice as may
be required by such exchange or automated quotation system, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.04. Execution and Authentication of Notes. The Notes
shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of its Chairman of the Board of Directors, Vice Chairman of
the Board of Directors, Chief Executive Officer, President, Chief Financial
Officer or any Vice President. The signature of any of these officers on the
Notes may be manual or facsimile. Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth on the form of
Note attached as Exhibit A hereto, manually executed by the Trustee (or an
authenticating agent appointed by the Trustee as
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provided by Section 15.11), shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee (or
such an authenticating agent) upon any Note executed by the Company shall be
conclusive evidence that the Note so authenticated has been duly authenticated
and delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any
of the Notes shall cease to be such officer before the Notes so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Notes had not ceased to be such officer
of the Company, and any Note may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Note, shall be the
proper officers of the Company, although at the date of the execution of this
Indenture any such person was not such an officer.
Section 2.05. Exchange and Registration of Transfer of Notes;
Restrictions on Transfer.
(a) The Company shall cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 4.14 being herein
sometimes collectively referred to as the "NOTE REGISTER") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers of Notes. The Note register shall be
in written form or in any form capable of being converted into written form
within a reasonably prompt period of time. The Trustee is hereby appointed "NOTE
REGISTRAR" for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-registrars in accordance with
Section 4.14.
Upon surrender for registration of transfer of any Note to the
Note registrar or any co-registrar, and satisfaction of the requirements for
such transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency maintained by the Company
pursuant to Section 4.14. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Notes which the Noteholder making the exchange is entitled to receive bearing
registration numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
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All Notes presented or surrendered for registration of
transfer or for exchange, redemption or repurchase shall (if so required by the
Company or the Note registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company or the
Note registrar, as the case may be, and the Notes shall be duly executed by the
Noteholder thereof or his attorney duly authorized in writing.
No service charge shall be made to any holder for any
registration of transfer or exchange of Notes, but either the Company, the
Trustee or both may require payment by the holder of a sum sufficient to cover
any tax, assessment or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note registrar
shall be required to exchange or register a transfer of (a) any Notes for a
period of fifteen (15) days next preceding any selection of Notes to be
redeemed, or (b) any Notes or portions thereof called for redemption pursuant to
Section 3.02.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this
Indenture shall be registered in the name of the Depositary or a
nominee thereof and delivered to such Depositary or a nominee thereof
or Custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(ii) Notwithstanding any other provision in this
Indenture, no Global Note may be exchanged in whole or in part for
Notes registered, and no transfer of a Global Note in whole or in part
may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (A) the Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Note or (ii) 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, (B) an Event of Default has occurred and is
continuing and the maturity of the Notes shall have been accelerated in
accordance with the terms of the Notes and any holder shall have
requested in writing the issuance of definitive certificated
securities, or (C) the Company, in its sole discretion, notifies the
Trustee in writing that it no longer wishes to have all the Notes
represented by Global Notes. Any Global Note exchanged pursuant to
clause (A) or (B) above shall be so exchanged in whole and not in part
and any Global Note exchanged pursuant to clause (C) above may be
exchanged in whole or from time to time in part as directed by the
Company. Any Note issued in exchange for a Global Note or any portion
thereof shall be a Global Note; provided that any such Note so issued
that is registered in the name of a Person other than the Depositary or
a nominee thereof shall not be a Global Note.
(iii) Notes issued in exchange for a Global Note or
any portion thereof pursuant to clause (ii) above and which is not a
Global Note shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount
equal to that of such Global Note or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall
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designate and shall bear any legends required hereunder. Any Global
Note to be exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Note registrar. With regard to any Global Note to be
exchanged in part, either such Global Note shall be so surrendered for
exchange or, if the Trustee is acting as Custodian for the Depositary
or its nominee with respect to such Global Note, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to
be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment, the
Trustee shall authenticate and make available for delivery the Note
issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the
events specified in clause (ii) above, the Company will promptly make
available to the Trustee a reasonable supply of certificated Notes in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary ("AGENT MEMBERS") nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Note registered in the name of the Depositary or
any nominee thereof, and the Depositary or such nominee, as the case
may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary
or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an
Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of any Note.
(vi) At such time as all interests in a Global Note
have been redeemed, repurchased, canceled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any
time prior to such cancellation, if any interest in a Global Note is
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, the principal amount of such Global Note shall, in
accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced, and
an endorsement shall be made on such Global Note, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In
case any Note shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon its written request the Trustee
or an authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen. In every case,
the applicant for a substituted Note shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them
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harmless for any loss, liability, cost or expense caused by or connected with
such substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, to the Trustee and, if applicable,
to such authenticating agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent,
as the case may be, of satisfactory security or indemnity and evidence, as
described in the preceding paragraph, the Trustee or such authenticating agent
may authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, either the Company, the Trustee
or both may require the payment by the holder of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith. In case any Note which has
matured or is about to mature or has been called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note), as the case may be, if the
applicant for such payment shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or in connection with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, the
Trustee and, if applicable, any paying agent evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of
this Section 2.06 by virtue of the fact that any Note is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law, all
Notes shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
redemption or repurchase of mutilated, destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment or redemption or repurchase of negotiable instruments or other
securities without their surrender.
Section 2.07. Temporary Notes. Pending the preparation of
Notes in certificated form, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the written request of
the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and
substantially in the form of the Notes in certificated form, but with such
omissions, insertions and variations as may be appropriate for temporary Notes,
all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating
agent upon the same conditions and in substantially the same manner, and with
the same effect, as the Notes in certificated form. Without unreasonable delay,
the Company will execute and deliver to the Trustee or such authenticating agent
Notes in certificated form and thereupon any or all temporary Notes may be
surrendered in exchange therefor, at each office or agency maintained by the
Company pursuant to Section 4.14 and the Trustee or such authenticating agent
shall authenticate and make
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available for delivery in exchange for such temporary Notes an equal aggregate
principal amount of Notes in certificated form. Such exchange shall be made by
the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Notes in
certificated form authenticated and delivered hereunder.
Section 2.08. Cancellation of Notes. If the Company shall
acquire any of the Notes, such acquisition shall not operate as a redemption,
repurchase or satisfaction of the indebtedness represented by such Notes unless
and until the same are delivered to the Trustee for cancellation. All Notes
surrendered for the purpose of payment, redemption, repurchase, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent or any Note registrar, be surrendered to the Trustee and promptly canceled
by it, or, if surrendered to the Trustee, shall be promptly canceled by it, and
no Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture. The Trustee shall dispose of such canceled
Notes in accordance with its customary procedures. Any Notes surrendered by the
Company to the Trustee for cancellation shall be accompanied by an Officers'
Certificate requesting the Trustee to effect such cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Noteholders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the "CUSIP"
numbers.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01. Redemption of Notes at the Option of the
Company. Except as otherwise provided in this Article III, the Company may not
redeem any Notes prior to April 15, 2009. At any time on or after April 15,
2009, the Notes may be redeemed at the option of the Company (an "OPTIONAL
REDEMPTION"), in whole or in part, in cash, upon notice as set forth in Section
3.03, at the following Redemption prices, together with accrued and unpaid
interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date that is on or prior to the redemption date to
receive interest due on an interest payment date), if redeemed during the
12-month period commencing April 15, of the years set forth below:
REDEMPTION
YEAR PRICE
- -------------------------------------------------- ----------
2009 ............................................. 103.438%
2010 ............................................. 102.292%
2011 ............................................. 101.146%
2012 and thereafter .............................. 100.000%
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In addition, on or prior to April 15, 2009, the Company may
redeem the Notes, at its option, in whole at any time or in part from time to
time, at a redemption price equal to 100% of the principal amount thereof, plus
accrued interest, if any, to the redemption date, plus the Make-Whole Premium (a
"MAKE-WHOLE REDEMPTION").
Notwithstanding the foregoing, at any time, or from time to
time, on or prior to April 15, 2007, the Company may, at its option, use all or
any portion of the Net Cash Proceeds of one or more Qualified Equity Offerings
(as defined below) to redeem up to 35% of the aggregate principal amount of the
Notes issued at a redemption price equal to 106.875% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of redemption;
provided that at least 65% of the aggregate principal amount of Notes originally
issued remains outstanding immediately after any such redemption. In order to
effect the foregoing redemption with the proceeds of any Qualified Equity
Offering, the Company shall consummate such redemption not more than 120 days
after the consummation of any such Qualified Equity Offering.
As used in the preceding paragraph, "QUALIFIED EQUITY
OFFERING" means any public or private offering of Qualified Capital Stock of the
Company (other than any such offering to a Subsidiary of the Company) to the
extent that the Net Cash Proceeds therefrom are contributed to the common equity
capital of the Company or are used to subscribe from the Company shares of its
Qualified Capital Stock.
Section 3.02. Redemption by the Company for Tax Purposes. In
addition to the Company's ability to redeem the Notes as provided in Section
3.01, the Company may, at its option, redeem the Notes as a whole, but not in
part, on not less than 30 nor more than 60 days' prior notice to the relevant
redemption date, if:
(i) (A) the Company becomes or will become obligated
to pay additional amounts as described under Section 4.02, (B) the
obligation to pay additional amounts arises as a result of any change
in the laws, regulations or rulings of the United States, or an
official position regarding the application or interpretation of such
laws, regulations or rulings, which change is announced or becomes
effective on or after the date of issuance of the Notes, and (C) the
Company determines, in its business judgment, that the obligation to
pay such additional amounts cannot be avoided by the use of reasonable
measures available to it, other than substituting the obligor under the
Notes or taking any action that would entail a material cost to the
Company; or
(ii) (A) any act is taken by a taxing authority of
the United States on or after the date of the issuance of the Notes,
whether or not such act is taken in relation to the Company or any
Affiliate, that results in a substantial probability that the Company
will or may be required to pay additional amounts as described under
Section 4.02, (B) the Company determines, in its business judgment,
that the obligation to pay such additional amounts cannot be avoided by
the use of reasonable measures available to it, other than substituting
the obligor under the Notes or taking any action that would entail a
material cost to the Company, and (C) the Company receives an opinion
of independent counsel to the effect that an act taken by a taxing
authority of the United
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States results in a substantial probability that the Company will or
may be required to pay the additional amounts described under Section
4.02, and delivers to the Trustee a certificate, signed by a duly
authorized officer, stating that based on such opinion the Company is
entitled to redeem the Notes pursuant to their terms.
In the event the Company is entitled to redeem all or a
portion of the Notes pursuant to this Section 3.02, the Company shall pay a
redemption price equal to 100% of the principal amount of the Notes, together
with accrued and unpaid interest, if any, to the redemption date.
Section 3.03. Notice of Optional Redemption; Selection of
Notes. In case the Company shall desire to exercise the right to redeem all or,
as the case may be, any part of the Notes pursuant to Section 3.01, it shall fix
a date for redemption and it or, at its written request received by the Trustee
not fewer than forty-five (45) days prior (or such shorter period of time as may
be acceptable to the Trustee) to the date fixed for redemption, the Trustee in
the name of and at the expense of the Company, shall mail or cause to be mailed
a notice of such redemption not fewer than thirty (30) nor more than sixty (60)
days prior to the redemption date to each holder of Notes so to be redeemed as a
whole or in part at its last address as the same appears on the Note register;
provided that if the Company shall give such notice, it shall give substantially
concurrent written notice of the redemption date to the Trustee. Such mailing
shall be by first class mail. The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note. Concurrently with the mailing
of any such notice of redemption, the Company shall issue a press release
announcing such redemption, the form and content of which press release shall be
determined by the Company in its sole discretion. The failure to issue any such
press release or any defect therein shall not affect the validity of the
redemption notice or any of the proceedings for the redemption of any Note
called for redemption.
Each such notice of redemption shall specify the aggregate
principal amount of Notes to be redeemed, the CUSIP number or numbers of the
Notes being redeemed, the date fixed for redemption (which shall be a Business
Day), the redemption price at which Notes are to be redeemed, the place or
places of payment, that payment will be made upon presentation and surrender of
such Notes, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon or
on the portion thereof to be redeemed will cease to accrue. If fewer than all
the Notes are to be redeemed, the notice of redemption shall identify the Notes
to be redeemed (including CUSIP numbers, if any). In case any Note is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that, on and after the
redemption date, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section 3.03, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting as
the paying agent, set aside, segregate and hold in trust as provided in Section
4.16) an amount of money in immediately available funds sufficient
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to redeem on the redemption date all the Notes (or portions thereof) so called
for redemption at the appropriate redemption price, together with accrued
interest to, but excluding, the redemption date; provided that if such payment
is made on the redemption date it must be received by the Trustee or paying
agent, as the case may be, by 10:00 a.m. New York City time on such date. The
Company shall be entitled to retain any interest, yield or gain on amounts
deposited with the Trustee or any paying agent pursuant to this Section 3.03 in
excess of amounts required hereunder to pay the redemption price and accrued
interest to, but excluding, the redemption date. Whenever any Notes are to be
redeemed pursuant to Section 3.01, the Company will give the Trustee written
notice in the form of an Officers' Certificate not fewer than forty-five (45)
days (or such shorter period of time as may be acceptable to the Trustee) prior
to the redemption date as to the aggregate principal amount of Notes to be
redeemed.
If less than all of the outstanding Notes are to be redeemed,
the Trustee shall select the Notes or portions thereof of the Global Note or the
Notes in certificated form to be redeemed (in principal amounts of (euro)1,000
or multiples thereof) by lot, in compliance with the requirements, as certified
to it by the Company, of the principal national securities exchange on which the
Notes are listed or, if the Notes are not listed on a national securities
exchange, on a pro rata basis, by lot or by such other method as the Trustee in
its sole discretion shall deem fair and appropriate; provided that no Notes of
(euro)1,000 in principal amount or less shall be redeemed in part. The Notes (or
portions thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof.
Section 3.04. Payment of Notes Called for Redemption by the
Company. If notice of redemption has been given as provided in Section 3.03, the
Notes or portion of Notes with respect to which such notice has been given shall
become due and payable on the date fixed for redemption and at the place or
places stated in such notice at the applicable redemption price, together with
interest accrued to (but excluding) the redemption date, and on and after said
date (unless the Company shall default in the payment of such Notes at the
redemption price, together with interest accrued to said date) interest on the
Notes or portion of Notes so called for redemption shall cease to accrue and,
except as provided in Sections 7.06 and 12.06, to be entitled to any benefit or
security under this Indenture, and the holders thereof shall have no right in
respect of such Notes except the right to receive the redemption price thereof
and unpaid interest to (but excluding) the redemption date. On presentation and
surrender of such Notes at a place of payment in said notice specified, the said
Notes or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to, but excluding, the redemption date; provided that if the applicable
redemption date is an interest payment date, the interest payable on such
interest payment date shall be payable to the holders of record of such Notes on
the applicable record date instead of the holders surrendering such Notes for
redemption on such date.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or
Notes, of authorized denominations, in principal amount equal to the unredeemed
portion of the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem
any Notes or mail any notice of redemption during the continuance of a default
in payment of interest or premium,
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if any, on the Notes. If any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid or duly provided for, bear interest from the redemption date at a
rate equal to 1% per annum plus the rate borne by the Note (without duplication
of the 1% increase provided for under Section 6.02) until the principal and
premium, if any, and interest shall have been paid or duly provided for.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees that it will duly and punctually pay or cause to be
paid the principal of and premium, if any (including the redemption price upon
redemption pursuant to Article 3 or the purchase price upon repurchase pursuant
to Article 4), and interest, on each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.
Section 4.02. Obligation to Pay Additional Amounts.
(a) The Company will pay additional amounts to the beneficial
owner of any Note that is a non-United States person in order to ensure that
every net payment on such Note will not be less, due to payment of United States
withholding tax, than the amount then due and payable. For this purpose, a "NET
PAYMENT" on a Note means a payment by the Company or any paying agent, including
payment of principal and interest, after deduction for any present or future
tax, assessment or other governmental charge of the United States. These
additional amounts will constitute additional interest on the Note.
(b) Notwithstanding the foregoing, the Company will not be
required to pay additional amounts, in any of the circumstances described in
paragraphs (1) through (14) of this Section 4.02(b).
(1) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is imposed or withheld solely by
reason of the beneficial owner:
(i) having a relationship with the United States as a
citizen, resident or otherwise;
(ii) having had such a relationship in the past; or
(iii) being considered as having had such a relationship.
(2) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is imposed or withheld solely by
reason of the beneficial owner:
(i) being treated as present in or engaged in a trade or
business in the United States;
(ii) being treated as having been present in or engaged in
a trade or business in the United States in the past;
or
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(iii) having or having had a permanent establishment in the
United States.
(3) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is imposed or withheld solely by
reason of the beneficial owner being or having been a:
(i) personal holding company;
(ii) foreign personal holding company;
(iii) foreign private foundation or other foreign
tax-exempt organization;
(iv) passive foreign investment company;
(v) controlled foreign corporation; or
(vi) corporation which has accumulated earnings to avoid
United States federal income tax.
(4) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax assessment or other
governmental charge that is imposed or withheld solely by
reason of the beneficial owner owning or having owned,
actually or constructively, 10 percent or more of the total
combined voting power of all classes of stock of the Company
entitled to vote.
(5) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment, or other
governmental charge that is imposed or withheld solely by
reason of the beneficial owner of a Note being a bank that has
invested in a Note as an extension of credit made pursuant to
a loan agreement entered into in its ordinary course of
business.
For purposes of paragraphs (1) through (5) above, "beneficial
owner" means a fiduciary, settler, beneficiary, member or shareholder of the
holder if the holder is an estate, trust, partnership, limited liability
company, corporation or other entity, or a person holding a power over an estate
or trust administered by a fiduciary holder.
(6) Additional amounts will not be payable to any beneficial owner
of a Note that is a:
(i) fiduciary;
(ii) partnership;
(iii) limited liability company; or
(iv) other fiscally transparent entity
or that is not the sole beneficial owner of the Note, or any portion of the
Note. However, this exception to the obligation to pay additional amounts will
only apply to the extent that a beneficiary or settler in relation to the
fiduciary, or a beneficial owner, partner, or member of the partnership, limited
liability company or other fiscally transparent entity, would not have been
entitled to the payment of an additional amount had the beneficiary, settlor,
partner, beneficial owner or member received directly its beneficial or
distributive share of the payment.
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(7) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is imposed or withheld by reason of
the failure of the beneficial owner or any other person to
comply with applicable certification, identification,
documentation or other information reporting requirements.
This exception to the obligation to pay additional amounts
will only apply if compliance with such reporting requirements
is required as a precondition to exemption from such tax,
assessment or other governmental charge by statute or
regulation of the United States or by an applicable income tax
treaty to which the United States is a party.
(8) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is collected or imposed by any method
other than by withholding from a payment on a Note by the
Company or any paying agent.
(9) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is imposed or withheld by reason of a
change in law, regulation, or administrative or judicial
interpretation that becomes effective more than 15 days after
the payment becomes due or is duly provided for, whichever
occurs later.
(10) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment or other
governmental charge that is imposed or withheld by reason of
the presentation by the beneficial owner of a Note for payment
more than 30 days after the date on which such payment becomes
due or is duly provided for, whichever occurs later.
(11) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any:
(i) estate tax;
(ii) inheritance tax;
(iii) gift tax;
(iv) sales tax;
(v) excise tax;
(vi) transfer tax;
(vii) wealth tax;
(viii) personal property tax; or
(ix) any similar tax, assessment or other governmental
charge.
(12) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment, or other
governmental charge that is required to be made pursuant to
any European Union Directive on the taxation of savings income
or any law implementing or complying with, or introduced in
order to conform to, any such directive.
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(13) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any tax, assessment, or other
governmental charge that is imposed solely because the payment
is to be made by a particular paying agent (which term may
include the Company) and would not be imposed if made by
another paying agent.
(14) Additional amounts will not be payable if a payment on a Note
is reduced as a result of any combination of items (1) through
(14) above.
(c) Except as specifically provided in this Section 4.02 and
Section 3.02, the Company will not be required to make any payment of any tax,
assessment or other governmental charge imposed by any government or a political
subdivision or taxing authority of such government.
(d) Whenever in this Indenture there is mentioned, in any
context, the payment of principal, premium, if any, interest or of any other
amount payable under or with respect to any Note, such mention shall be deemed
to include mention of the payment of additional amounts to the extent that, in
such context, additional amounts are, were or would be payable in respect
thereof.
Section 4.03. Limitation on Indebtedness.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes and
Indebtedness existing on the Closing Date); provided that the Company or any
Restricted Subsidiary may Incur Indebtedness (including without limitation,
Acquired Indebtedness), if, after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the proceeds therefrom, the
Interest Coverage Ratio would be greater than 2.0 to 1.
(b) Notwithstanding the foregoing paragraph (a), the Company
and any Restricted Subsidiary (except as specified below) may Incur each and all
of the following:
(i) Indebtedness outstanding at any time in aggregate
principal amount not to exceed an amount equal to the greater of (A)
$750 million, less any amount of Indebtedness permanently repaid as
provided under Section 4.11 and (B) the sum of (1) 90% of the
consolidated book value of the accounts receivable (other than accounts
receivable subject to a Receivables Program) of the Company and its
Restricted Subsidiaries plus (2) 60% of the consolidated book value of
the inventory of the Company and its Restricted Subsidiaries, in each
case determined in accordance with GAAP;
(ii) the Senior Notes and the Convertible Notes;
(iii) Indebtedness (A) to the Company evidenced by a
promissory note or (B) to any of its Restricted Subsidiaries; provided
that any event which results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Restricted
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Subsidiary) shall be deemed, in each case, to constitute an Incurrence
of such Indebtedness not permitted by this clause (iii);
(iv) Indebtedness issued in exchange for, or the net
proceeds of which are used to refinance or refund, then outstanding
Indebtedness, other than Indebtedness Incurred under clause (i), (iii),
(v), (vii) or (viii) of this paragraph (b), and any refinancings
thereof in an amount not to exceed the amount so refinanced or refunded
(plus premiums, accrued interest, fees and expenses); provided that (A)
in case the Indebtedness to be refinanced is pari passu, with, or
subordinated in right of payment to, the Notes, such new Indebtedness,
by its terms or by the terms of any agreement or instrument pursuant to
which such new Indebtedness is issued or remains outstanding, is
expressly made pari passu, with, or subordinate in right of payment to,
the Notes at least to the extent that the Indebtedness to be refinanced
is pari passu, with, or subordinated to the Notes and (B) such new
Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such
new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and provided further that in
no event may Indebtedness of the Company be refinanced by means of any
Indebtedness of any Restricted Subsidiary pursuant to this clause (iv);
(v) Indebtedness (A) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, (B)
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of
the Company or any of its Restricted Subsidiaries pursuant to such
agreements, in any case Incurred in connection with the disposition of
any business, assets or Restricted Subsidiary of the Company (other
than Guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, assets or Restricted Subsidiary of the
Company for the purpose of financing such acquisition), in a principal
amount not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such
disposition;
(vi) Indebtedness of the Company, to the extent the
net proceeds thereof are promptly used to purchase Notes tendered in an
Offer to Purchase made as a result of a Change of Control; provided
that any Indebtedness incurred pursuant to this clause (vi) with
respect to the payment of Notes shall not mature prior to the Stated
Maturity of the Notes, and shall have an Average Life that is at least
equal to the remaining Average Life of the Notes;
(vii) Indebtedness of the Company, to the extent the
net proceeds thereof are promptly deposited to defease the Notes
pursuant to Article XII hereof;
(viii) Guarantees of Indebtedness of the Company by
any Restricted Subsidiary provided the Guarantee of such Indebtedness
is permitted by and made in accordance with Section 4.08;
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(ix) Indebtedness Incurred in connection with a Tax
Abatement Transaction; and
(x) Indebtedness represented by Purchase Money
Indebtedness and Capitalized Lease Obligations not to exceed 2.5% of
Adjusted Consolidated Net Tangible Assets.
(c) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Company or a Restricted Subsidiary
may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with
respect to any outstanding Indebtedness, due solely to the result of
fluctuations in the exchange rates of currencies.
(d) The U.S. dollar-equivalent principal amount of any
Indebtedness denominated in a foreign currency will be calculated based on the
relevant currency exchange rate in effect on the date the Indebtedness was
Incurred, or first committed, in the case of revolving credit Indebtedness;
provided that if any Indebtedness is incurred to refinance Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
such U.S. dollar-denominated restriction will be deemed not to have been
exceeded so long as the principal amount of the Indebtedness incurred to
refinance such outstanding Indebtedness does not exceed the principal amount of
such Indebtedness being refinanced.
(e) For purposes of determining any particular amount of
Indebtedness under this Section 4.03,
(i) Indebtedness Incurred under the Existing Credit
Facility on the Closing Date shall be treated as Incurred pursuant to
clause (i) of paragraph (b) of this Section 4.03;
(ii) Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included; and
(iii) any Liens granted pursuant to the equal and
ratable provisions referred to in Section 4.10 shall not be treated as
Indebtedness.
For purposes of determining compliance with this Section 4.03, in the event that
an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the above clauses (other than Indebtedness referred to
in clause (i) of paragraph (e) of this Section 4.03), the Company, in its sole
discretion, shall classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses.
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Section 4.04. Limitation on Senior Subordinated Indebtedness.
The Company will not Incur any Indebtedness that is expressly made subordinate
in right of payment to any Senior Indebtedness of the Company unless such
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such Indebtedness is outstanding, is expressly made pari passu
with, or subordinate in right of payment to, the Notes pursuant to provisions
substantially similar to those contained in Article XIV; provided that the
foregoing limitation shall not apply to distinctions between categories of
Senior Indebtedness of the Company that exist by reason of any Liens or
Guarantees arising or created in respect of some but not all of such Senior
Indebtedness.
Section 4.05. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any
distribution on its Capital Stock (other than (A) dividends or
distributions payable solely in shares of its Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to acquire
shares of such Capital Stock; (B) dividends or distributions made to
the Company or a Restricted Subsidiary and (C) pro rata dividends or
distributions on Common Stock of Restricted Subsidiaries held by
minority stockholders, provided that such dividends do not in the
aggregate exceed the minority stockholders' pro rata share of such
Restricted Subsidiaries' net income from the first day of the fiscal
quarter beginning immediately following the Closing Date) held by
Persons other than the Company or any of its Wholly Owned Restricted
Subsidiaries;
(ii) purchase, redeem, retire or otherwise acquire
for value any shares of Capital Stock of (x) the Company or an
Unrestricted Subsidiary (including options, warrants or other rights to
acquire such shares of Capital Stock) held by any Person or (y) a
Restricted Subsidiary (including options, warrants or other rights to
acquire such shares of Capital Stock) held by any Affiliate of the
Company (other than a Wholly Owned Restricted Subsidiary) or any holder
(or any Affiliate of such holder) of 5% or more of the Capital Stock of
the Company;
(iii) make any voluntary or optional principal
payment, or voluntary or optional redemption, repurchase, defeasance,
or other acquisition or retirement for value, of Indebtedness of the
Company that is subordinated in right of payment to the Notes (other
than the purchase, repurchase, or acquisition of Indebtedness in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in any case due within one year of the
date of acquisition); or
(iv) make any Investment, other than a Permitted
Investment, in any Person (such payments or any other actions described
in clauses (i) through (iv) of this paragraph (a) being collectively
"RESTRICTED PAYMENTS")
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if, at the time of, and after giving effect to, the proposed Restricted
Payments:
(A) a Default or Event of Default shall have occurred
and be continuing;
(B) the Company could not Incur at least $1.00 of
Indebtedness under paragraph (a) of Section 4.03; or
(C) the aggregate amount of all Restricted Payments
(the amount expended for such purpose, if other than in cash,
being the Fair Market Value of such property) made after the
Closing Date shall exceed the sum of:
(1) 50% of the aggregate amount of the
Adjusted Consolidated Net Income (or, if the Adjusted
Consolidated Net Income is a loss, minus 100% of the
amount of such loss) (determined by excluding income
resulting from transfers of assets by the Company or
a Restricted Subsidiary to an Unrestricted
Subsidiary) accrued on a cumulative basis during the
period (taken as one accounting period) beginning on
the first day of the fiscal quarter beginning
immediately following the Closing Date and ending on
the last day of the last fiscal quarter preceding the
Transaction Date for which reports have been filed
pursuant to Section 5.04,
(2) the aggregate Net Cash Proceeds received
by the Company on or after April 1, 2004 from the
issuance and sale permitted by this Indenture of its
Capital Stock (other than Redeemable Stock) to a
Person who is not a Subsidiary of the Company,
including an issuance or sale permitted by this
Indenture of Indebtedness of the Company for cash
subsequent to the Closing Date upon the conversion of
such Indebtedness into Capital Stock (other than
Redeemable Stock) of the Company, or from the
issuance to a Person who is not a Subsidiary of the
Company of any options, warrants or other rights to
acquire Capital Stock of the Company (in each case,
exclusive of any Redeemable Stock or any options,
warrants or other rights that are redeemable at the
option of the holder, or are required to be redeemed,
prior to the Stated Maturity of the Notes),
(3) an amount equal to the net reduction in
Investments (other than reductions in Permitted
Investments) in any Person resulting from payments of
interest on Indebtedness, dividends, repayments of
loans or advances, or other transfers of assets, in
each case to the Company or any Restricted Subsidiary
or from the Net Cash Proceeds from the sale of any
such Investment (except, in each case, to the extent
any such payment or proceeds are included in the
calculation of Adjusted Consolidated Net Income), or
from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as
provided in the definition of "Investments"), not to
exceed, in each case, the amount of Investments
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previously made by the Company or any Restricted
Subsidiary in such Person or Unrestricted Subsidiary,
and
(4) $25 million.
(b) The restrictions contained in paragraph (a) of this
section shall not be violated by reason of:
(i) the payment of any dividends on Capital Stock of
the Company within 60 days after the date of declaration thereof in an
aggregate amount that does not exceed $10 million in any fiscal year;
provided, however, that up to $5 million of any unused amount of the
foregoing $10 million basket may be carried forward and used in the
next fiscal year;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes including premium, if
any, and accrued and unpaid interest, with the proceeds of, or in
exchange for, Indebtedness Incurred under clause (iii) of paragraph (b)
of Section 4.03;
(iii) the repurchase, redemption or other acquisition
of Capital Stock of the Company (or options, warrants or other rights
to acquire such Capital Stock) in exchange for, or out of the proceeds
of a substantially concurrent offering of, shares of Capital Stock
(other than Redeemable Stock) of the Company;
(iv) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other acquisition for
value of Indebtedness of the Company which is subordinated in right of
payment to the Notes in exchange for, or out of the proceeds of a
substantially concurrent offering of, shares of the Capital Stock of
the Company (other than Redeemable Stock);
(v) payments or distributions to dissenting
stockholders pursuant to applicable law pursuant to or in connection
with a consolidation, merger or transfer of assets that complies with
Article XI;
(vi) the repurchase of shares, or options to purchase
shares, of Capital Stock of the Company from employees, former
employees, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such persons
purchase or sell or are granted the option to purchase or sell, shares
of such stock; provided however, that the aggregate amount of such
repurchases shall not exceed $2 million in any calendar year (unless
such repurchases are made with the proceeds of insurance policies and
the shares of Capital Stock are repurchased from the executors,
administrators, testamentary trustees, heirs, legatees or
beneficiaries) plus the aggregate Net Cash Proceeds from any reissuance
during such calendar year of Capital Stock to employees or directors of
the Company or its Subsidiaries; and provided further, however, that to
the extent less than $2 million of repurchases of Capital Stock are
paid in any calendar year pursuant to this clause (vi)
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(without taking into account repurchases from proceeds of insurance
policies or Net Cash Proceeds from reissuances as described above), the
unused portion may be carried forward and paid in any subsequent
calendar year;
(vii) any purchase of any fractional share of Common
Stock of the Company resulting from (A) any dividend or other
distribution on outstanding shares of Common Stock of the Company that
is payable in shares of such Common Stock (including any stock split or
subdivision of the outstanding Common Stock of the Company), (B) any
combination of all of the outstanding shares of Common Stock of the
Company, (C) any reorganization or consolidation of the Company or any
merger of the Company with or into any other Person, or (D) the
conversion of any securities of the Company into shares of Common Stock
of the Company;
(viii) the redemption of any Preferred Stock purchase
rights issued under the Company's current or future stockholder rights
plan at a redemption price of $0.01 per right; or
(ix) Investments in an aggregate amount not to exceed
$50 million outstanding at any time in any Person or Persons the
primary business of which is related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the date
of such Investment;
provided that, except in the case of clause (iii) of this paragraph (b), no
Default or Event of Default shall have occurred and be continuing or occur as a
consequence of the actions or payments set forth therein.
(d) Each Restricted Payment permitted pursuant to paragraph
(b) (other than the Restricted Payment referred to in clause (ii) of paragraph
(b), an exchange of Capital Stock for Capital Stock or Indebtedness referred to
in clause (iii) or (iv) of paragraph (b) and repurchases of Capital Stock with
the proceeds of insurance policies referred to in clause (vi) of paragraph (b)),
and the Net Cash Proceeds from any issuance of Capital Stock referred to in
clauses (iii) and (iv) of paragraph (b), shall be included in calculating
whether the conditions of clause (C) of paragraph (a) of this Section 4.05 have
been met with respect to any subsequent Restricted Payments. In the event the
proceeds of an issuance of Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of the Notes, or Indebtedness that
is pari passu with the Notes, then the Net Cash Proceeds of such issuance shall
be included in clause (C) of paragraph (a) of this Section 4.05 only to the
extent such proceeds are not used for such redemption, repurchase or other
acquisition of Indebtedness.
Section 4.06. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to:
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(i) pay dividends or make any other distributions
permitted by applicable law on any Capital Stock of such Restricted
Subsidiary owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary;
(iii) make loans or advances to the Company or any
other Restricted Subsidiary; or
(iv) transfer any of its property or assets to the
Company or any other Restricted Subsidiary.
(b) The foregoing provisions shall not restrict any
encumbrances or restrictions that:
(i) exist in the Existing Credit Facility, the Senior
Note Indenture, this Indenture or any other agreements in effect on the
Closing Date, and any extensions, refinancings, renewals or
replacements of such agreements; provided that the encumbrances and
restrictions in any such extensions, refinancings, renewals or
replacements are no less favorable in any material respect to the
holders than those encumbrances or restrictions that are then in effect
and that are being extended, refinanced, renewed or replaced;
(ii) exist under or by reason of applicable law;
(iii) exist with respect to any Person or the
property or assets of such Person acquired by the Company or any
Restricted Subsidiary, existing at the time of such acquisition and not
incurred in contemplation thereof, which encumbrances or restrictions
are not applicable to any Person or the property or assets of any
Person other than such Person or the property or assets of such Person
so acquired;
(iv) in the case of clause (iv) of paragraph (a) of
this Section 4.06,
(A) restrict in a customary manner the
subletting, assignment or transfer of any property or asset
that is a lease, license, conveyance or contract or similar
property or asset,
(B) exist by virtue of any transfer of,
agreement to transfer, option or right with respect to or Lien
on, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture, or
(C) arise or are agreed to in the ordinary
course of business, not relating to any Indebtedness, and that
do not, individually or in the aggregate, detract from the
value of property or assets of the Company or any Restricted
Subsidiary in any manner material to the Company or any
Restricted Subsidiary;
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(v) with respect to a Restricted Subsidiary, are
imposed pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock
of, or property and assets of, such Restricted Subsidiary;
(vi) exist under a Receivables Program; provided that
the encumbrances and restrictions in such Receivables Program are no
less favorable in any material respect to the holders than the
encumbrances and restrictions in the Existing Credit Facility;
(vii) exist under Purchase Money Indebtedness and
Capitalized Lease Obligations permitted to be incurred pursuant to
clause (b)(ix) of Section 4.03 that impose limitations of the type
described above under clause (iv) of this Section relating solely to
the property or assets being financed thereby;
(viii) requiring the subordination in right of
payment of any intercompany obligations between the Company and its
Restricted Subsidiaries to any Senior Indebtedness; or
(ix) restrictions contained in any documents
governing any Senior Indebtedness incurred after the Closing Date which
are not more restrictive than those contained in the Existing Credit
Facility.
Nothing contained in this Section 4.06 shall prevent the Company or any
Restricted Subsidiary from (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted by Section 4.10 or (2) restricting the sale
or other disposition of property or assets of the Company or any of its
Restricted Subsidiaries that secure Indebtedness of the Company or any of its
Restricted Subsidiaries.
Section 4.07. Limitation on the Issuance and Sale of Capital
Stock of Restricted Subsidiaries. The Company will not sell, and will not permit
any Restricted Subsidiary, directly or indirectly, to issue or sell, any shares
of Capital Stock of a Restricted Subsidiary (including options, warrants or
other rights to purchase shares of such Capital Stock) except for:
(i) issuances or sales to the Company or a Wholly
Owned Restricted Subsidiary;
(ii) issuances of director's qualifying shares or
sales to foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable law; or
(iii) issuances or sales of Capital Stock of a
Restricted Subsidiary if such issuance or sale complies with Section
4.11 (including the application of any Net Cash Proceeds received in
such transaction in accordance with clause (i) (A) or (B) of paragraph
(b) of Section 4.11).
Notwithstanding the foregoing, if, immediately after giving effect to
such issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary, any
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Investment in such Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 4.05, if made on the date of
such issuance or sale.
Section 4.08. Limitation on Issuances of Guarantees by
Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee any other Indebtedness of the Company which
is pari passu with, or subordinate in right of payment to, the Notes
("GUARANTEED INDEBTEDNESS"), unless:
(i) such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture
providing for a Guarantee (a "Subsidiary Guarantee") of payment of the
Notes by such Restricted Subsidiary; and
(ii) such Restricted Subsidiary waives and will not
in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights
against the Company or any other Restricted Subsidiary as a result of
any payment by such Restricted Subsidiary under its Subsidiary
Guarantee;
provided that this paragraph (a) shall not be applicable to any Guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted
Subsidiary and was not Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary.
If the Guaranteed Indebtedness is (x) pari passu with the
Notes, then the Guarantee of such Guaranteed Indebtedness shall be pari passu
with, or subordinated to, the Subsidiary Guarantee or (y) subordinated to the
Notes, then the Guarantee of such Guaranteed Indebtedness shall be subordinated
to the Subsidiary Guarantee at least to the extent that the Guaranteed
Indebtedness is subordinated to the Notes.
(b) Notwithstanding the foregoing paragraph (a), any
Subsidiary Guarantee by a Restricted Subsidiary may provide by its terms that,
as long as no Event of Default has occurred and is continuing, it shall be
automatically and unconditionally released and discharged upon:
(i) any sale, exchange or transfer, to any Person
that is not an Affiliate of the Company, of all of the Company's and
each Restricted Subsidiary's Capital Stock in, or exchange or transfer
is not prohibited by this Indenture; or
(ii) the release or discharge of the Guarantee which
resulted in the creation of such Subsidiary Guarantee, except a
discharge or release by or as a result of payment under such Guarantee.
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Section 4.09. Limitation on Transactions with Stockholders and
Affiliates
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any holder
(or any Affiliate of such holder) of 5% or more of any class of Capital Stock of
the Company or with any Affiliate of the Company or any Restricted Subsidiary
unless:
(i) such transaction is based upon fair and
reasonable terms no less favorable to the Company or such Restricted
Subsidiary than could be obtained, at the time of such transaction or,
if such transaction is pursuant to a written agreement, at the time of
the execution of the agreement providing therefor, in a comparable
arm's-length transaction with a Person that is not such a holder or an
Affiliate; and
(ii) (A) with respect to any such transaction
involving consideration of $5 million or more, such transaction is
approved by a majority of the disinterested members of the Board of
Directors and (B) with respect to any transaction involving
consideration of greater than $15 million, for which the Company or a
Restricted Subsidiary delivers to the Trustee a written opinion of a
nationally recognized investment banking firm stating that the
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view, unless such transaction involves a public
offering, in which case such opinion shall not be required.
(b) The provisions of the preceding paragraph (a) do not
limit, and shall not apply to:
(i) transactions involving consideration of $5
million or less;
(ii) any transaction solely between the Company and
any of its Wholly Owned Restricted Subsidiaries or solely between
Wholly Owned Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular
fees to directors of the Company who are not employees of the Company;
(iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Company and any other Person with
which the Company files a consolidated tax return or with which the
Company is part of a consolidated group for tax purposes;
(v) any issuance of securities or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership
plans or incentive plans approved by the Board of Directors;
(vi) any Restricted Payments not prohibited by
Section 4.05; or
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(vii) transactions entered into in the ordinary
course of business with any Affiliate engaged primarily in the business
of providing retail financing to purchasers of agricultural equipment
provided that such transactions are on fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than could
be obtained, at the time of such transaction or, if such transaction is
pursuant to a written agreement, at the time of the execution of the
agreement providing therefor, in a comparable arm's-length transaction
with a Person that is not such a holder or an Affiliate.
Section 4.10. Limitation on Liens. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist any Lien securing Indebtedness that is pari
passu with, or subordinated in right of payment to, the Notes, on any of its
assets or properties of any character, or any shares of Capital Stock or
Indebtedness of any Restricted Subsidiary, now owned or hereafter acquired, or
any income or profits therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens, without providing that the Notes shall be
secured equally and ratably with (or prior to) the obligations so secured for so
long as such obligations are so secured.
Section 4.11. Limitation on Asset Sales.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, consummate any Asset Sale, unless:
(i) the consideration received by the Company or such
Restricted Subsidiary is at least equal to the Fair Market Value of the
assets sold or disposed of; and
(ii) at least 75% of the consideration received
consists of cash or Temporary Cash Investments.
(b) In the event and to the extent that the Net Cash Proceeds
received by the Company or any of its Restricted Subsidiaries from one or more
Asset Sales occurring on or after the Closing Date in any period of 12
consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets
(determined as of the date closest to the commencement of such 12-month period
for which a consolidated balance sheet of the Company and its subsidiaries have
been filed pursuant to Section 5.04), then the Company shall or shall cause the
relevant Restricted Subsidiary to:
(i) within 12 months after the date Net Cash Proceeds
so received exceed 10% of Adjusted Consolidated Net Tangible Assets:
(A) apply an amount equal to such excess Net Cash
Proceeds to permanently repay Senior Indebtedness of the
Company or a Guarantee of any Restricted Subsidiary, in each
case owing to a Person other than the Company or any of its
Restricted Subsidiaries; or
(B) invest an equal amount, or the amount not so
applied pursuant to clause (A) (or enter into a definitive
agreement committing to so invest within 12
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months after the date of such agreement), in property or
assets (other than current assets) of a nature or type or that
are used in a business (or in a company having property and
assets of a nature or type, or engaged in a business) similar
or related to the nature or type of the property and assets
of, or the business of, the Company and its Restricted
Subsidiaries existing on the date of such investment; and
(ii) apply (no later than the end of the 12-month
period referred to in clause (i)) such excess Net Cash Proceeds (to the
extent not applied pursuant to clause (i)) as provided in paragraphs
(c) and (d) of this Section 4.11.
The amount of such excess Net Cash Proceeds required to be applied (or to be
committed to be applied) during such 12-month period as set forth in clause (i)
and not applied as so required by the end of such period shall constitute
"EXCESS PROCEEDS."
(c) Notwithstanding the foregoing, to the extent that any or
all of the Net Cash Proceeds of any Asset Sale of assets based outside the
United States are prohibited or delayed by applicable local law from being
repatriated to the United States and such Net Cash Proceeds are not actually
applied in accordance with paragraphs (a) and (b) of this Section 4.11, the
Company shall not be required to apply the portion of such Net Cash Proceeds so
effected but may permit the applicable Restricted Subsidiaries to retain such
portion of the Net Cash Proceeds so long, but only so long, as the applicable
local law will not permit repatriation to the United States (the Company hereby
agreeing to cause the applicable Restricted Subsidiary to promptly take all
actions required by the applicable local law to permit such repatriation) and
once such repatriation of any such affected Net Cash Proceeds is permitted under
the applicable local law, such repatriation will be immediately effected and
such repatriated Net Cash Proceeds will be applied in the manner set forth in
this covenant as if the Asset Sale had occurred on such date; provided that to
the extent that the Company has determined in good faith that repatriation of
any or all of the Net Cash Proceeds of such Asset Sale would have a material
adverse tax cost consequence, the Net Cash Proceeds so affected may be retained
by the applicable Restricted Subsidiary for so long as such material adverse tax
cost event would continue.
(d) If, as of the first day of any calendar month, the
aggregate amount of Excess Proceeds not theretofore subject to an Offer to
Purchase pursuant to this Section 4.11 totals at least $10 million, the Company
must commence, not later than the 15th Business Day of such month, and
consummate an Offer to Purchase from the holders on a pro rata basis an
aggregate principal amount of Notes equal to the Excess Proceeds on such date,
at a purchase price equal to 100% of the principal amount of the Notes, plus, in
each case, accrued interest (if any) to the date of purchase.
Section 4.12. Limitation on Sale/Leaseback Transactions. The
Company will not, and will not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless:
(i) the Company or such Restricted Subsidiary would
be entitled to Incur Indebtedness in an amount equal to the
Attributable Debt with respect to such Sale/Leaseback Transaction under
Section 4.03;
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(ii) the net proceeds received by the Company or any
Restricted Subsidiary in connection with such Sale/Leaseback
Transaction are at least equal to the Fair Market Value of such
property; and
(iii) the transfer of assets in such Sale/Leaseback
Transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, Section 4.11.
Section 4.13. Repurchase Upon Change of Control. Following a
Change of Control, the Company must commence, within 30 days of the occurrence
of such Change of Control, and consummate an Offer to Purchase for all Notes
then outstanding, at a purchase price equal to 101% of the principal amount
thereof, plus accrued interest (if any) to the date of purchase.
Section 4.14. Maintenance of Office or Agency. The Company
will maintain an office or agency in the Borough of Manhattan, The City of New
York, where the Notes may be surrendered for registration of transfer or
exchange or for presentation for payment or for redemption or repurchase and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by 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 Corporate Trust Office of the
Trustee or at the address of the Trustee's designee, in either case, as agent of
the Company.
The Company may also from time to time designate co-registrars
and one or more 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. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Trustee as paying
agent, Note registrar and Custodian and the Corporate Trust Office shall be
considered as one such office or agency of the Company for each of the aforesaid
purposes.
So long as the Trustee is the Note registrar, the Trustee
agrees to mail, or cause to be mailed, the notices set forth in Section 7.10(b)
and the third paragraph of Section 7.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Notes it can identify from its records.
Section 4.15. Appointments to Fill Vacancies in Trustee's
Office. The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
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Section 4.16. Provisions as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee, or if the Trustee shall appoint such a paying agent, the Company will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section 4.16:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of, or premium, if any, or
interest on, the Notes (whether such sums have been paid to it by the
Company or by any other obligor on the Notes) in trust for the benefit
of the holders of the Notes;
(2) that it will give the Trustee written notice of
any failure by the Company (or by any other obligor on the Notes) to
make any payment of the principal of, or premium, if any, or interest
on, the Notes when the same shall be due and payable; and
(3) that at any time during the continuance of an
Event of Default, upon request of the Trustee, it will forthwith pay to
the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal
of, or premium if any, or interest on, the Notes, deposit with the paying agent
a sum (in funds which are immediately available on the due date for such
payment) sufficient to pay such principal, premium, if any, or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee in writing of any failure to take such action; provided that if such
deposit is made on the due date, such deposit shall be received by the paying
agent by 10:00 a.m. New York City time, on such date.
(b) If the Company shall act as the paying agent, it will, on
or before each due date of the principal of, or premium, if any, or interest on,
the Notes, set aside, segregate and hold in trust for the benefit of the holders
of the Notes a sum sufficient to pay such principal, premium, if any, or
interest so becoming due, will account for any funds disbursed by it and will
promptly notify the Trustee in writing of any failure to take such action and of
any failure by the Company (or any other obligor under the Notes) to make any
payment of the principal of, or premium, if any, or interest on, the Notes when
the same shall become due and payable.
(c) Anything in this Section 4.16 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company or any
paying agent hereunder as required by this Section 4.16, such sums to be held by
the Trustee upon the trusts herein contained and upon such payment by the
Company or any paying agent to the Trustee, the Company or such paying agent
shall be released from all further liability with respect to such sums.
(d) Anything in this Section 4.16 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
4.16 is subject to Sections 12.05 and 12.06.
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The Trustee shall not be responsible for the actions of any
other paying agents (including the Company if acting as the paying agent) and
shall have no control of any funds held by such other paying agents.
Section 4.17. Existence. Subject to Article XI, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
Section 4.18. Maintenance of Properties. The Company will
cause all properties used or useful in the conduct of its business or the
business of any Significant Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section shall prevent the Company from discontinuing the operation or
maintenance of, or disposing of, any of such properties if such discontinuance
or disposal is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Significant Subsidiary and not disadvantageous
in any material respect to the Noteholders.
Section 4.19. Payment of Taxes and Other Claims. The Company
will pay or discharge, or cause to be paid or discharged, before the same may
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Significant Subsidiaries or upon the
income, profits or property of the Company or any of its Significant
Subsidiaries, (ii) all claims for labor, materials and supplies which, if
unpaid, might by law become a lien or charge upon the property of the Company or
any of its Significant Subsidiaries and (iii) all stamp taxes and other duties,
if any, which may be imposed by the United States or any political subdivision
thereof or therein in connection with the issuance, transfer, exchange,
redemption or repurchase of any Notes or with respect to this Indenture;
provided that, in the case of clauses (i) and (ii), the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith and for which adequate reserves have been established in
accordance with GAAP and which if unpaid would reasonably not be expected to
result in a material adverse effect on the business, results of operations, or
financial condition of the Company and its Significant Subsidiaries, taken as a
whole.
Section 4.20. Stay, Extension and Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law or other law which would
prohibit or forgive the Company from paying all or any portion of the principal
of, or premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture and the Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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.
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Section 4.21. Compliance Certificate; Notice of Default. The
Company shall deliver to the Trustee, within ninety (90) days after the end of
each fiscal year of the Company, an Officers' Certificate stating (x) that a
review has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries performance under
this Indenture and (y) whether or not to the best knowledge of the signers
thereof the Company is 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
shall be in Default, specifying all such Defaults and the nature and the status
thereof of which the signer may have knowledge.
The Company will deliver to the Trustee, as soon as possible
after the Company becomes aware of any Default or Event of Default, an Officers'
Certificate setting forth the details of such Default or Event of Default and
the action that the Company has taken, is taking or proposes to take with
respect thereto.
Any notice required to be given under this Section 4.21 shall
be delivered to a Officer of the Trustee at its Principal Corporate Trust
Office.
Section 4.22. Limitation on Applicability of Certain
Covenants. On or after such time as the Notes reach Investment Grade Status, and
notwithstanding that the Notes may later cease to have an Investment Grade
Rating from either or both Rating Agencies, the Company and its Subsidiaries
will not be subject to the requirements of Sections 4.03, 4.05, 4.06, 4.07,
4.08, 4.09, 4.11, 4.12, 4.13 and clauses (i) and (ii) of Section 11.01.
ARTICLE V
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Names and Addresses
of Noteholders. The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee, semiannually, not more than fifteen (15) days
after each April 1 and October 1 in each year beginning with October 1, 2004,
and at such other times as the Trustee may request in writing, within thirty
(30) days after receipt by the Company of any such request (or such lesser time
as the Trustee may reasonably request in order to enable it to timely provide
any notice to be provided by it hereunder), a list in such form as the Trustee
may reasonably require of the names and addresses of the registered holders of
Notes as of a date not more than fifteen (15) days (or such other date as the
Trustee may reasonably request in order to so provide any such notices) prior to
the time such information is furnished, except that no such list need be
furnished by the Company to the Trustee so long as the Trustee is acting as the
sole Note registrar.
Section 5.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Notes contained in the most recent list furnished to it as provided
in Section 5.01 or maintained by the Trustee in its capacity as Note registrar
or co-registrar in respect of the Notes, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
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(b) The rights of Noteholders to communicate with other
holders of Notes with respect to their rights under this Indenture or under the
Notes, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of holders of Notes made
pursuant to the Trust Indenture Act.
Section 5.03. Reports by Trustee.
(a) Within sixty (60) days after December 30 of each year
commencing with the year 2004, the Trustee shall transmit to holders of Notes
such reports dated as of December 30 of the year in respect of which such
reports are made concerning the Trustee and its actions under this Indenture as
shall be required, if any, pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee with each stock
exchange and automated quotation system upon which the Notes are listed with the
Commission and with the Company. The Company will promptly notify the Trustee in
writing when the Notes are listed on any stock exchange or automated quotation
system or delisted therefrom.
Section 5.04. Reports by Company. Whether or not the Company
is required to file such reports with the Commission, the Company shall file
with the Commission and the Trustee and transmit to holders of the Notes, such
information, documents and other reports as is required pursuant to Section
13(a) or 15(d) of the Exchange Act; provided, however, that the filing of any
such information, documents or other reports with the Commission on its EDGAR
system (or any successor system on which filings are publicly accessible) shall
be deemed to satisfy such requirement. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.01. Events of Default; Acceleration. In case one or
more of the following Events of Default (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) shall
have occurred and be continuing:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or
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otherwise, whether or not such payment is prohibited by the subordination
provisions under Article XIV;
(b) default in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period of 30
days, whether or not such payment is prohibited by the subordination provisions
under Article XIV;
(c) default in the performance or breach of Article XI or the
failure to make or consummate an Offer to Purchase in accordance with the
Section 4.11 or Section 4.13, whether or not such Offer to Purchase is
prohibited by the subordination provisions described in Article XIV;
(d) default in the performance of or breach of any other
covenant or agreement of the Company in this Indenture or under the Notes (other
than a default specified in clause (a), (b) or (c) above) that continues for a
period of 30 consecutive days after written notice by the Trustee or the holders
of 25% or more in aggregate principal amount of the Notes;
(e) the occurrence with respect to any issue or issues of
Indebtedness of the Company or any Significant Subsidiary having an outstanding
principal amount of $10 million or more in the aggregate for all such issues of
all such Persons, whether such Indebtedness now exists or shall hereafter be
created, of:
(i) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full
or such acceleration has not been rescinded or annulled within 30 days
of such acceleration; or
(ii) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such defaulted payment
shall not have been made, waived or extended within 30 days of such
payment default;
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Person (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company or any Significant Subsidiary and shall not be paid or discharged, and
there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged against all such Persons to
exceed $10 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for:
(i) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect;
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(ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or
any Significant Subsidiary or for all or substantially all of the
property and assets of the Company or any Significant Subsidiary; or
(iii) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(h) the Company or any Significant Subsidiary:
(i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case
under any such law;
(ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant
Subsidiary or for all or substantially all of the property and assets
of the Company or any Significant Subsidiary; or
(iii) effects any general assignment for the benefit
of creditors;
then, and in each and every such case (other than an Event of Default specified
in 6.01(g) or 6.01(h) that occurs with respect to the Company), unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the holders of not less than twenty-five percent (25%) in
aggregate principal amount of the Notes then outstanding hereunder determined in
accordance with Section 8.04, by notice in writing to the Company (and to the
Trustee if given by Noteholders) specifying the respective Event of Default and
stating that it is a "notice of acceleration", may declare the principal of and
premium, if any, on all the Notes and the interest accrued thereon to be due and
payable immediately, and upon receipt of such notice the same shall become and
shall be immediately due and payable; provided, however, that for so long as a
Credit Facility or the Senior Notes are in effect, such declaration shall not
become effective until the earlier of (i) five Business Days after receipt of
the acceleration notice by the agent(s) under any outstanding Credit Facilities,
the trustee under the Senior Note Indenture and the Company and (ii)
acceleration of the Indebtedness under each then outstanding Credit Facility
and/or the Senior Note Indenture. In the event of a declaration of acceleration
because of an Event of Default set forth in Section 6.01(e) has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded
and annulled if the event of default triggering such Event of Default pursuant
to Section 6.01(e) shall be remedied or cured by the Company or the relevant
Significant Subsidiary or waived by the holders of the relevant Indebtedness
within sixty (60) days after the declaration of acceleration with respect
thereto. If an Event of Default specified in 6.01(g) or 6.01(h) involving the
Company occurs, the principal of and premium, if any, on all the Notes and the
interest accrued thereon shall be immediately and automatically due and payable
without necessity of further action. This provision, however, is subject to the
conditions that if, at any time after the principal of the Notes shall have been
so
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declared due and payable, and before any judgment or decree for the payment of
the monies due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all Notes and the principal of, and
premium, if any, on, any and all Notes which shall have become due otherwise
than by acceleration (with interest on overdue installments of interest (to the
extent that payment of such interest is enforceable under applicable law) and on
such principal and premium, if any, at the rate borne by the Notes plus 1%, to
the date of such payment or deposit) and amounts due to the Trustee pursuant to
Section 7.07, and if any and all defaults under this Indenture, other than the
nonpayment of principal of, and premium and accrued interest on, Notes which
shall have become due by acceleration, shall have been cured or waived pursuant
to Section 6.07, then and in every such case the holders of a majority in
aggregate principal amount of the Notes then outstanding, by written notice to
the Company and to the Trustee, may waive all defaults or Events of Default and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or Event of Default, or shall impair any right consequent thereon. In accordance
with Section 4.21, the Company shall notify in writing a Officer of the Trustee,
promptly upon becoming aware thereof, of any Event of Default or any event
which, with notice or the lapse of time or both, would constitute an Event of
Default.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such waiver or rescission and annulment or for any other
reason or shall have been determined adversely to the Trustee, then and in every
such case the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the holders of Notes, and the Trustee shall
continue as though no such proceeding had been taken.
Section 6.02. Payments of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of sixty
(60) days, or (b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Notes as and when the same shall have
become due and payable, whether at maturity of the Notes or in connection with
any redemption or repurchase, by or under this Indenture or otherwise, then,
upon demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the holders of the Notes, the whole amount that then shall have become due
and payable on all such Notes for principal, premium, if any, or interest, as
the case may be, with interest upon the overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest at the rate borne by the Notes,
plus 1% and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other amounts due the
Trustee under Section 7.07. Until such demand by the Trustee, the Company may
pay the principal of, and premium, if any, and interest on, the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered
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to institute any actions or proceedings at law or in equity for the collection
of the sums so due and unpaid, and may prosecute any such action or proceeding
to judgment or final decree, and may enforce any such judgment or final decree
against the Company or any other obligor on the Notes and collect in the manner
provided by law out of the property of the Company or any other obligor on the
Notes wherever situated the monies adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Notes under
Title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative to
the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 6.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of the
Notes, and, in case of any judicial proceedings, to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee, its agents and its counsel and of the Noteholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the Notes, its or their creditors, or its or their property, and to
collect and receive any monies or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of any amounts due
the Trustee under Section 7.07, and any receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount due it
for reasonable compensation, expenses, advances and disbursements, including
counsel fees and expenses incurred by it up to the date of such distribution.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Notes, and it shall not be necessary to make any holders of
the Notes parties to any such proceedings.
Section 6.03. Application of Monies Collected by Trustee. Any
monies or other compensation collected by the Trustee pursuant to this Article
VI shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such monies or other
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compensation, upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 7.07;
SECOND: To the holders of Senior Indebtedness, as and
to the extent required by Article XIV;
THIRD: In case the principal of the outstanding Notes
shall not have become due and be unpaid, to the payment of
interest on the Notes in default in the order of the maturity
of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the rate borne by
the Notes plus 1%, such payments to be made ratably to the
Persons entitled thereto;
FOURTH: In case the principal of the outstanding
Notes shall have become due, by declaration or otherwise, and
be unpaid to the payment of the whole amount then owing and
unpaid upon the Notes for principal and premium, if any, and
interest, with interest on the overdue principal and premium,
if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of
interest at the rate borne by the Notes plus 1% to the Persons
entitled thereto, and in case such monies shall be
insufficient to pay in full the whole amounts so due and
unpaid upon the Notes, then to the payment of such principal,
premium, if any, and interest without preference or priority
of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any
installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued
and unpaid interest; and
FIFTH: To the payment of the remainder, if any, to
the Company or any other Person lawfully entitled thereto.
Section 6.04. Proceedings by Noteholder. No holder of any Note
shall have any right by virtue of or by reference to any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than twenty-five
percent (25%) in aggregate principal amount of the Notes then outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for sixty
(60) days after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or proceeding
and no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 6.07; it being understood and intended, and
being expressly covenanted by
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the taker and holder of every Note with every other taker and holder and the
Trustee, that no one or more holders of Notes shall have any right in any manner
whatever by virtue of or by reference to any provision of this Indenture to
affect, disturb or prejudice the rights of any other holder of Notes, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of Notes
(except as otherwise provided herein). For the protection and enforcement of
this Section 6.04, each and every Noteholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment of
the principal of, and premium, if any (including the redemption price upon
redemption pursuant to Article III or the repurchase price upon repurchase
pursuant to Article IV), and accrued interest on, such Note, on or after the
respective due dates expressed in such Note or in the case of a redemption or
repurchase, on the redemption date or repurchase date, as the case may be, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such holder.
Section 6.05. Proceedings by Trustee. In case of an Event of
Default, the Trustee may, in its discretion, but shall not be required to,
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of
such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.06. Remedies Cumulative and Continuing. Except as
provided in Section 2.06, all powers and remedies given by this Article VI to
the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any holder of any of the Notes to exercise any right or
power accruing upon any default or Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or any acquiescence therein, and, subject to the
provisions of Section 6.04, every power and remedy given by this Article VI or
by law to the Trustee or to the Noteholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Noteholders.
Section 6.07. Direction of Proceedings and Waiver of Defaults
by Majority of Noteholders. The holders of a majority in aggregate principal
amount of the Notes at the time outstanding determined in accordance with
Section 8.04 shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided that (a) such direction
shall not be in conflict with any rule of law or with this Indenture, (b) the
Trustee may take any other action which is not inconsistent with such direction
and (c) the Trustee may decline to take any
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action that the Trustee determines in its reasonable discretion would benefit
some Noteholder to the detriment of other Noteholders or of the Trustee. The
holders of a majority in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 8.04 may, on behalf of the
holders of all of the Notes, waive any past or existing Default or Event of
Default hereunder and its consequences except (i) a past or existing default in
the payment of interest or premium, if any, on, or the principal of, the Notes
(including in connection with an offer to purchase); provided however that
holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration in accordance with Section
6.01, (ii) a default in the payment of the redemption price pursuant to Article
III, (iii) a default in the payment of the purchase price pursuant to Article IV
or (iv) a Default in respect of a covenant or provisions hereof which under
Article X cannot be modified or amended without the consent of the holders of
each or all Notes then outstanding or affected thereby. Upon any such waiver,
the Company, the Trustee and the holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon. Whenever any Default or Event of Default hereunder shall have been
cured or waived as permitted by this Section 6.07, said Default or Event of
Default shall for all purposes of the Notes and this Indenture be deemed to have
been cured and to be not continuing for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Section 6.08. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Note by his acceptance thereof shall be
deemed to have agreed, that any court may, in its discretion, require, 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, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section 6.08 (to the extent permitted by law) shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group of
Noteholders, holding in the aggregate more than 10% in principal amount of the
Notes at the time outstanding determined in accordance with Section 8.04, or to
any suit instituted by any Noteholder for the enforcement of the payment of the
principal of, or premium, if any, or interest on, any Note on or after the due
date expressed in such Note.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act (as if such Act applied). Notwithstanding the foregoing, no provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against
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such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01. If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
Section 7.02. Notice of Defaults. Subject to the provisions of
Section 7.03(i), the Trustee shall give the Noteholders notice of any Default
hereunder known to the Trustee as and to the extent provided by the Trust
Indenture Act (as if such Act applied); provided, however, that except in the
case of Default in the payment of the principal of, or premium, if any, or
interest on, any of the Notes, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of directors and/or Officers of
the Trustee in good faith determines that the withholding of such notice is in
the interests of the Noteholders.
Section 7.03. Certain Rights of the Trustee. Subject to the
provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be
protected in acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of the Company;
(c) 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, rely
conclusively upon an Officers' Certificate as to such matter that is
reasonably satisfactory to the Trustee;
(d) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Noteholders pursuant to the
provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee security or indemnity reasonably satisfactory to
it against the costs, expenses (including reasonable attorney's fees
and expenses) and liabilities which
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might be incurred by it in compliance with such request or direction;
any permissive right or power available to the Trustee under this
Indenture shall not be construed to be a mandatory duty or obligation;
(f) 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, but shall not be required to, 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;
(g) 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 by it with due care hereunder;
(h) the Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, in
reliance on an Officers' Certificate or otherwise, and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture or for any action it takes
or omits to take in accordance with the direction of the holders of a
majority in principal amount of the outstanding Notes; in no event
shall the Trustee be liable to any person for special, indirect,
consequential or punitive damages or any damages for lost profits;
(i) the Trustee shall not be deemed to have knowledge
of any Default or Event of Default unless a 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 Principal
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture; and
(j) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
Section 7.04. Not Responsible for Statements or Issuance of
Notes. The statements contained herein and in the Notes, except in the Trustee's
certificate of authentication, shall be taken as the statements of the Company
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture and
the Notes or any offering or registration documents related thereto. The Trustee
shall not be accountable for the use or application by the Company of any Notes
or the proceeds thereof.
Section 7.05. May Hold Notes. The Trustee, any authentication
agent, any paying agent, any Note registrar or any other agent of the Company or
the Trustee, in its
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individual or any other capacity, may become the owner or pledgee of Notes, and,
subject to Sections 7.08 and 7.13, may otherwise deal with the Company and any
other obligor upon the Notes with the same rights it would have if it were not
Trustee, authentication agent, paying agent or Note registrar.
Section 7.06. Monies to be Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed in writing with
the Company.
Section 7.07. Compensation and Reimbursement. The Company
agrees (1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between the Company and the Trustee, including the
compensation described herein, for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); (2) except as otherwise
expressly provided herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or willful misconduct; and (3) to indemnify each of the Trustee and
any predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses, including reasonable attorney's
fees and expenses, of defending itself against any claim (whether asserted by
the Company, a Noteholder or any other Person) or liability, or of complying
with any process served upon it or any of its officers, in connection with the
exercise or performance of any of its powers or duties hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel.
The Trustee shall have a lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.07, except with respect to funds
held in trust for the benefit of the holders of particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(g) or 6.01(h), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
Section 7.08. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
this Indenture.
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Section 7.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $150,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section 7.09, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VII.
Section 7.10. Resignation and Removal of Trustee; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VII shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of the
holders of a majority in principal amount of the outstanding Notes, delivered to
the Trustee and the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may petition any
court of competent jurisdiction for the appointment of a successor.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
7.08 after written request therefor by the Company or by any Noteholder
who has been a bona fide holder of a Note for at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 7.09 and shall fail to resign after written request therefor by
the Company or by any such Noteholder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.08, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly
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situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a resolution of the Board of Directors, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by act of the holders of a majority in
principal amount of the outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the holders and accepted appointment in the
manner hereinafter provided, any Noteholder who has been a bona fide holder of a
Note for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
holders in the manner provided in Section 15.03. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
(g) Notwithstanding replacement of the Trustee pursuant to
this Section 7.10, the Company's obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
Section 7.11. Acceptance of Appointment of Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on written request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article 7.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 7.11, the Company (or the former Trustee, at the
written direction and expense of the Company) shall mail or cause to be mailed
notice of the succession of such Trustee hereunder to the holders of Notes at
their addresses as they shall appear on the Note register, which notice shall
include the address of the Corporate Trust Office of such successor Trustee. If
the Company fails to mail such notice within ten (10) days after acceptance of
appointment by the
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successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Company.
Section 7.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 7.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company or
any other obligor upon the Notes, the Trustee shall be subject to the provisions
of the Trust Indenture Act (as if such Act applied) regarding the collection of
the claims against the Company or any such other obligor.
ARTICLE VIII
THE NOTEHOLDERS
Section 8.01. Action by Noteholders. Whenever in this
Indenture it is provided that the holders of a specified percentage in aggregate
principal amount of the Notes may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action, the
holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article 9,
or (c) by a combination of such instrument or instruments and any such record of
such a meeting of Noteholders. Whenever the Company or the Trustee solicits the
taking of any action by the holders of the Notes, the Company or the Trustee may
fix in advance of such solicitation, a date as the record date for determining
holders entitled to take such action. The record date shall be not more than
fifteen (15) days prior to the date of commencement of initial solicitation of
such action without giving effect to any extension or amendment of such action
or solicitation.
Section 8.02. Proof of Execution by Noteholders. Subject to
the provisions of Sections 7.03 and 9.05, proof of the execution of any
instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note registrar.
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The record of any Noteholders' meeting shall be proved in the
manner provided in Section 9.06.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the
Trustee, any authenticating agent, any paying agent and any Note registrar may
deem the Person in whose name such Note shall be registered upon the Note
register to be, and may treat it as, the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by any Person other than the Company or any Note
registrar) for the purpose of receiving payment of or on account of the
principal of, and premium, if any, and interest on, such Note and for all other
purposes; and neither the Company nor the Trustee nor any authenticating agent,
any paying agent nor any Note registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time being, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Note.
Section 8.04. Company-Owned Notes Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or any Affiliate of the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent, waiver or other
action, only Notes which a Officer actually knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 8.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Notes and that the pledgee is not the Company, any other obligor on the
Notes or any Affiliate of the Company or any such other obligor. In the case of
a dispute as to such right, any good faith decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Notes, if any, known by the Company to
be owned or held by or for the account of any of the above described Persons,
and, subject to Section 7.03, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Notes not listed therein are outstanding for the purpose of
any such determination.
Section 8.05. Revocation of Consents, Future Holders Bound. At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Note. Except as aforesaid, any such action taken by the holder of
any Note shall be a continuing action and conclusive and binding upon such
holder and upon all future holders and owners of such Note and of any Notes
issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Note or any Note issued in exchange
or substitution therefor. An amendment,
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supplement or waiver becomes effective in accordance with its terms and
thereafter binds every holder.
ARTICLE IX
MEETINGS OF NOTEHOLDERS
Section 9.01. Purpose of Meetings. A meeting of Noteholders
may be called at any time and from time to time pursuant to the provisions of
this Article IX for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee or to give any directions to the Trustee permitted under this
Indenture, or to consent to the waiving of any default or Event of
Default hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to any of the provisions
of Article VI;
(2) to remove the Trustee and nominate a successor
Trustee pursuant to the provisions of Article VII;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
10.02; or
(4) to take any other action authorized to be taken
by or on behalf of the holders of any specified aggregate principal
amount of the Notes under any other provision of this Indenture or
under applicable law.
Section 9.02. Call of Meetings by Trustee. At the Company's
expense, the Trustee may at any time call a meeting of Noteholders to take any
action specified in Section 9.01, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of the Noteholders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting and the establishment of any record date
pursuant to Section 8.01, shall be mailed to holders of Notes at their addresses
as they shall appear on the Note register. Such notice shall also be mailed to
the Company. Such notices shall be mailed not less than twenty (20) nor more
than ninety (90) days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if
the holders of all Notes then outstanding are present in person or by proxy or
if notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 9.03. Call of Meetings by Company or Noteholders. In
case at any time the Company, pursuant to a resolution of its Board of
Directors, or the holders of at least twenty-five (25%) in aggregate principal
amount of the Notes then outstanding, shall have requested the Trustee to call a
meeting of Noteholders, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty (20) days after receipt of such
request, then the
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Company or such Noteholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 9.01,
by mailing notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to
vote at any meeting of Noteholders a person shall (a) be a holder of one or more
Notes on the record date pertaining to such meeting or (b) be a person appointed
by an instrument in writing as proxy by a holder of one or more Notes on the
record date pertaining to such meeting. The only persons who shall be entitled
to be present or to speak at any meeting of Noteholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 9.05. Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Noteholders, in regard to proof of
the holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Noteholders as provided in Section 9.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting except that any meeting called by the Company shall be chaired by
a representative of the Company and any meeting called by the Trustee may, at
the Trustee's election, be chaired by the Trustee.
Subject to the provisions of Section 8.04, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each (euro)1,000
principal amount of Notes held or represented by him. If any vote cast or
counted or proposed to be cast or counted is challenged on the ground that such
Note is not outstanding, or does not comply with the provisions of Section 9.04,
the chairman of the meeting shall determine whether the holder of such Note is
authorized to act. The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the proxy to vote on behalf of other Noteholders. Any meeting
of Noteholders duly called pursuant to the provisions of Section 9.02 or 10.02
may be adjourned from time to time by the holders of a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 9.06. Voting. The vote upon any resolution submitted
to any meeting of Noteholders shall be by written ballot on which shall be
subscribed the signatures of the holders of Notes or of their representatives by
proxy and the outstanding principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall be representatives of the Trustee, and who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate of
all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Noteholders shall be prepared by the secretary of the
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meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section 9.02.
The record shall show the principal amount of the Notes voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated, absent manifest error.
Section 9.07. No Delay of Rights by Meeting. Nothing contained
in this Article IX shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Noteholders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of
Noteholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time, and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Notes; or
(b) to add to the covenants of the Company for the
benefit of the Noteholders, or to surrender any right or power herein
conferred upon the Company; or
(c) to evidence or provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Notes;
or
(d) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, which shall not be inconsistent
with the provisions of this Indenture; or
(e) to add to, change or eliminate any of the
provisions of this Indenture to permit or facilitate the issuance of
Global Notes and matters related thereto, provided that such action
pursuant to this clause (e) shall not adversely affect the interests of
the Holders in any material respect; or
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(f) to provide for the issuance of Additional Notes
in accordance with the provisions of this Indenture; or
(g) to modify or amend any of the provisions of this
Indenture in connection with the qualification of this Indenture under
the Trust Indenture Act; or
(h) to add Guarantees with respect to the Notes; or
(i) to secure the Notes; or
(j) to make any change that does not adversely affect
the rights of any holder.
Upon the written request of the Company, accompanied by a copy
of the resolutions of the Board of Directors certified by its Secretary or
Assistant Secretary authorizing the execution of any supplemental indenture, the
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee's own rights, duties, liabilities or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 10.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 10.02.
Section 10.02. Supplemental Indenture with Consent of
Noteholders. With the consent (evidenced as provided in Article VIII) of the
holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, the Company, when authorized by the resolutions of the
Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or any supplemental indenture or of modifying in
any manner the rights of the holders of the Notes; provided that no such
supplemental indenture shall, without the consent of each holder affected:
(i) change the Stated Maturity of the principal of,
or any installment of interest on, any Note;
(ii) reduce the principal amount of, or premium, if
any, or interest on, any Note;
(iii) change the place or currency of payment of
principal of, or premium, if any, or interest on, any Note;
(iv) impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity (or, in the
case of a redemption, on or after the Redemption Date) of any Note;
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(v) reduce the above-stated percentage of outstanding
Notes the consent of whose holders is necessary to modify or amend this
Indenture;
(vi) modify Article XIV in a manner adverse to the
holders;
(vii) waive a default in the payment of principal of,
premium, if any, or interest on the Notes; or
(viii) reduce the percentage or aggregate principal
amount of outstanding Notes the consent of whose holders is necessary
for waiver of compliance with certain provisions of this Indenture or
for waiver of certain Defaults.
Subject to Section 10.05, upon the written request of the
Company, accompanied by a copy of the resolutions of the Board of Directors
certified by its Secretary or Assistant Secretary authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Noteholders as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Noteholders
under this Section 10.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
Section 10.03. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article X, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Notes shall thereafter be determined, exercised and
enforced hereunder, subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 10.04. Notation on Notes. Notes authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article X may bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company or
the Trustee shall so determine, new Notes so modified as to conform, in the
opinion of the Trustee and the Company, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 15.11)
and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
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Section 10.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished to Trustee. Prior to entering into any supplemental
indenture, the Trustee may request an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article X.
ARTICLE XI
MERGER, CONSOLIDATION, ETC.
Section 11.01. Mergers, Consolidations and Certain Transfers,
Leases and Acquisitions of Assets. The Company shall not consolidate, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially an
entirety in one transaction or a series of related transactions) to, any Person
or permit any Person to merge with or into the Company unless:
(i) the Company shall be the continuing Person, or
the Person (if other than the Company) formed by such consolidation or
into which the Company is merged or that acquired or leased such
property and assets of the Company shall be a corporation organized and
validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Notes and under this
Indenture;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis the Company, or any Person becoming
the successor obligor of the Notes, as the case may be, could Incur at
least $1.00 of Indebtedness under paragraph (a) of Section 4.03;
provided that this clause (iii) shall not apply to a consolidation or
merger with or into a Wholly Owned Restricted Subsidiary with a
positive net worth; provided further that, in connection with any such
merger or consolidation, no consideration (other than Common Stock in
the surviving Person or the Company) shall be issued or distributed to
the stockholders of the Company; and
(iv) the Company delivers to the Trustee an Officers'
Certificate attaching the arithmetic computations to demonstrate
compliance with clause (iii) and an Opinion of Counsel, in each case
stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction
have been complied with.
Notwithstanding the foregoing, clause (iii) above does not
apply if, in the good faith determination of the Board of Directors of the
Company, whose determination shall be evidenced by a Board Resolution, the
principal purpose of such transaction is to change the state of incorporation of
the Company; provided that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.
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Section 11.02. Successor to Be Substituted. Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 11.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes.
Section 11.03. Opinion of Counsel to Be Given Trustee. The
Trustee shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of this Article XI.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Termination of the Company's Obligations(a) .
Except as otherwise provided in this Section 12.01, the Company may terminate
its obligations under the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered
(other than destroyed, lost or stolen Notes that have been replaced or
Notes that are paid pursuant to Section 4.01 or Notes for whose payment
money or securities have theretofore been held in trust and thereafter
repaid to the Company, as provided in Section 12.05 and Section 12.06)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder; or
(ii) (A) the Notes mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without
consideration of any reinvestment of any interest thereon, to pay
principal, premium, if, any, and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, (C) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (D)
such deposit will not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound and (E) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, in each case
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stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with.
With respect to the foregoing clause (i), the Company's
obligations under Section 7.07 shall survive. With respect to the foregoing
clause (ii), the Company's obligations in Articles II, III, XII and XIV and
Sections 4.01, 4.14, 7.01 and 7.03 through 7.12 shall survive until no Note
remains outstanding. Thereafter, only the Company's obligations in Section 7.07,
12.06 and 12.07 shall survive. The rights, obligations and immunities of the
Trustee hereunder shall survive any discharge pursuant to this Section 12.01,
and Section 7.07 shall survive the termination of this Indenture. After any such
irrevocable deposit, in compliance with this Section 12.01, the Trustee upon
written request shall acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for those surviving
obligations specified above.
Section 12.02. Defeasance and Discharge of Indenture. The
Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Notes on the 123rd day after the date of the
deposit referred to in clause (A) of this Section 12.02, and the provisions of
this Indenture will no longer be in effect with respect to the Notes, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same, except as to (i) rights of registration of transfer and
exchange, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Notes, (iii) rights of Holders to receive payments of principal thereof and
interest thereon, (iv) the Company's obligations under Section 4.14, (v) the
rights, obligations and immunities of the Trustee hereunder and (vi) the rights
of the Holders as beneficiaries of this Indenture with respect to the property
so deposited with the Trustee payable to all or any of them; provided that the
following conditions shall have been satisfied:
(A) with reference to this Section 12.02, the Company
has irrevocably deposited or caused to be irrevocably deposited with
the Trustee (or another trustee satisfying the requirements of Section
7.09 of this Indenture) and conveyed all right, title and interest for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (1) money in an amount, (2) U.S.
Government Obligations that, through the payment of interest, premium,
if any, and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (A), money in an amount or (3) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and accrued interest on the outstanding
Notes at the Stated Maturity of such principal or interest; provided
that the Trustee shall have been irrevocably instructed in writing to
apply such money or the proceeds of such U.S. Government Obligations to
the payment of such principal, premium, if any, and interest with
respect to the Notes;
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(B) such deposit will not result in a breach or
violation of, or constitute a default under this Indenture or any other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound;
(C) immediately after giving effect to such deposit
on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 123rd day after such date of deposit;
(D) the Company shall have delivered to the Trustee
(1) either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 12.02
and will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option had not been exercised or (y) an Opinion of Counsel to the same
effect as the ruling described in clause (x) above accompanied by a
ruling to that effect published by the Internal Revenue Service, unless
there has been a change in the applicable federal income tax law since
the date of this Indenture such that a ruling from the Internal Revenue
Service is no longer required and (2) an Opinion of Counsel to the
effect that (x) the creation of the defeasance trust does not violate
the Investment Company Act of 1940 and (y) after the passage of 123
days following the deposit (except, with respect to any trust funds for
the account of any Holder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year following
the deposit), the trust funds will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute, and either (I) the trust funds will
no longer remain the property of the Company (and therefore will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally)
or (II) if a court were to rule under any such law in any case or
proceeding that the trust funds remained property of the Company, (a)
assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders, a valid and
perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise except for the effect of Section 552(b) of
the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute and (b)
the Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such case
or proceeding;
(E) if the Notes are then listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit defeasance and
discharge will not cause the Notes to be delisted; and
(F) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 12.02 have been complied with.
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Notwithstanding the foregoing, prior to the end of the 123-day
(or one year) period referred to in clause (D)(2)(y) of this Section 12.02, none
of the Company's obligations under this Indenture shall be discharged.
Subsequent to the end of such 123-day (or one year) period with respect to this
Section 12.02, the Company's obligations in Articles II, III, XII and XIV and
Sections 4.01, 4.14, 7.01 and 7.03 through 7.12 shall survive. Thereafter, only
the Company's obligations in Sections 7.07, 12.06 and 12.07 shall survive. If
and when a ruling from the Internal Revenue Service or an Opinion of Counsel
referred to in clause (D)(1) of this Section 12.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance of the
Company's obligations under Section 4.01, then the Company's obligations under
such Section 4.01 shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent provided
for herein relating to the defeasance contemplated by this Section 12.02.
After any such irrevocable deposit in compliance with this
Section 12.02, the Trustee upon written request shall acknowledge in writing the
discharge of the Company's obligations under the Notes and this Indenture except
for those surviving obligations in the immediately preceding paragraph.
Section 12.03. Deposited Monies to Be Held in Trust by
Trustee. Subject to Section 12.06, all monies deposited with the Trustee
pursuant to Section 12.01, shall be held in trust for the sole benefit of the
holders of Notes, and such monies shall be applied by the Trustee to the
payment, either directly or through any paying agent (including the Company if
acting as the paying agent), to the holders of the particular Notes for the
payment or redemption of which such monies have been deposited with the Trustee,
of all sums due and to become due thereon for principal, premium, if any, and
interest.
Section 12.04. Defeasance of Certain Obligations. The Company
(x) may omit to comply with any term, provision or condition set forth in clause
(iii) of Section 11.01 and Sections 4.03 through 4.13; and (y) clause (c) of
Section 6.01 with respect to clause (iii) of Section 11.01, Section 4.11 and
Section 4.13; clause (d) of Section 6.01 with respect to Sections 4.03 through
4.13; and clauses (e) and (f) of Section 6.01 shall be deemed not to be Events
of Default, in each case with respect to the outstanding Notes if:
(i) with reference to this Section 12.04, the Company
has irrevocably deposited or caused to be irrevocably deposited with
the Trustee (or another trustee satisfying the requirements of Section
7.09) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a combination
thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and
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assessments in respect thereof payable by the Trustee, the principal
of, premium, if any, and interest on the outstanding Notes on the
Stated Maturity of such principal or interest; provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the Notes;
(ii) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(iii) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (A) the creation of the
defeasance trust does not violate the Investment Company Act of 1940,
(B) the Holders have a valid first-priority security interest in the
trust funds, (C) the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred and (D) after the passage of 123 days following the deposit
(except, with respect to any trust funds for the account of any Holder
who may be deemed to be an "insider" for purposes of the United States
Bankruptcy Code, after one year following the deposit), the trust funds
will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law
in a case commenced by or against the Company under either such
statute, and either (1) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally) or (2) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company, (x) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
(except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute), (y) the Holders will be
entitled to receive adequate protection of their interests in such
trust funds if such trust funds are used in such case or proceeding and
(z) no property, rights in property or other interests granted to the
Trustee or the Holders in exchange for, or with respect to, such trust
funds will be subject to any prior rights of holders of other
Indebtedness of the Company or any of its Subsidiaries;
(v) if the Notes are then listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit defeasance and
discharge will not cause the Notes to be delisted; and
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(vi) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 12.04 have been complied with.
In the event the Company exercises its option to omit
compliance with the Sections listed above in the first paragraph of this Section
12.04 with respect to the outstanding Notes and the Notes are declared due and
payable as a result of the occurrence of an Event of Default that remains
applicable, the amount of money or U.S. Government Obligations on deposit with
the Trustee will be sufficient to pay amounts due on the Notes at the time of
their Stated Maturity but may not be sufficient to pay amounts due on the Notes
at the time of the acceleration resulting from such Event of Default. In such
case, the Company will remain liable for such payments due on the Notes.
Section 12.05. Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any paying
agent of the Notes (other than the Trustee) shall, upon written request of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying agent
shall be released from all further liability with respect to such monies.
Section 12.06. Return of Unclaimed Monies. Subject to the
requirements of applicable law and this Indenture, any monies deposited with or
paid to the Trustee for payment of the principal of, or premium, if any, or
interest on, Notes and not applied but remaining unclaimed by the holders of
Notes for two years after the date upon which the principal of, or premium, if
any, or interest on, such Notes, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on demand and all
liability of the Trustee shall thereupon cease with respect to such monies; and
the holder of any of the Notes shall thereafter look only to the Company for any
payment that such holder may be entitled to collect unless an applicable
abandoned property law designates another Person.
Section 12.07. Reinstatement. If the Trustee or the paying
agent is unable to apply any money in accordance with Section 12.03 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.01 until such time as the Trustee or
the paying agent is permitted to apply all such money in accordance with Section
12.03; provided that if the Company makes any payment of interest on or
principal of any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Notes to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Indenture and Notes Solely Corporate
Obligations. No recourse for the payment of the principal of, or premium, if
any, or interest on, any Note, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation,
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covenant or agreement of the Company or the Trustee, respectively, in this
Indenture or in any supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Company or the Trustee, respectively, or
of any respective successor corporation, either directly or through the Company
or the Trustee, respectively, or any respective successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE XIV
SUBORDINATION OF NOTES
Section 14.01. Notes Subordinated to Senior Indebtedness. The
Company and the Trustee each covenants and agrees, and each holder, by its
acceptance of a Note, likewise covenants and agrees that all Notes shall be
issued subject to the provisions of this Article XIV; and each Person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of principal, premium and interest
on the Notes shall, to the extent and in the manner set forth in this Article
XIV, be subordinated in right of payment to the prior payment in full, in cash
or cash equivalents, of all amounts payable under Senior Indebtedness,
including, without limitation, the Company's obligations under the Existing
Credit Facility and the Senior Notes (including any interest accruing subsequent
to an event specified in Sections 6.01(g) and 6.01(h), whether or not such
interest is an allowed claim enforceable against the debtor under the United
States Bankruptcy Code).
Section 14.02. No Payment on Notes in Certain Circumstances.
(a) Except for payments permitted by Article XII, no direct or
indirect payment by or on behalf of the Company of principal, premium and
interest on the Notes, whether pursuant to the terms of the Notes or upon
acceleration or otherwise, shall be made if, at the time of such payment, there
exists a default in the payment of all or any portion of the obligations of any
Designated Senior Indebtedness, and such default shall not have been cured or
waived or the benefits of this sentence waived by or on behalf of the holders of
such Designated Senior Indebtedness.
(b) During the continuance of any other event of default with
respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may be accelerated (i) upon receipt by the Trustee of written notice
from the trustee or other representative for the holders of such Designated
Senior Indebtedness (or the holders of at least a majority in principal amount
of such other Designated Senior Indebtedness then outstanding), no payment of
principal, premium and interest on the Notes may be made by or on behalf of the
Company upon or in respect of the Notes for a period (a "PAYMENT BLOCKAGE
PERIOD") commencing on the date of receipt of such notice and ending 179 days
thereafter (unless, in each case, such Payment Blockage Period shall be
terminated by written notice to the Trustee from such trustee of, or other
representatives for, such holders or by repayment in full in cash or
cash-equivalents of such
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Designated Senior Indebtedness or such event of default has been cured or
waived) or (ii) if such default results from the acceleration of the Notes or
from a Change of Control, from and after the date of such acceleration or
occurrence of such Change of Control. Notwithstanding anything in this Indenture
to the contrary, no new Payment Blockage Period may be commenced unless and
until (x) there has been 180 consecutive days in any 360-day period in which no
Payment Blockage Period is in effect and (y) all scheduled payments of
principal, premium and interest on the Notes that have come due have been paid
in full. For all purposes of this Section 14.02(b), no event of default that
existed or was continuing (it being acknowledged that any subsequent action that
would give rise to an event of default pursuant to any provision under which an
event of default previously existed or was continuing shall constitute a new
event of default for this purpose) on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Indebtedness
initiating such Payment Blockage Period shall be, or shall be made, the basis
for the commencement of a second Payment Blockage Period by the representative
for, or the holders of, such Designated Senior Indebtedness, whether or not
within a period of 360 consecutive days, unless such event of default shall have
been cured or waived for a period of not less than 45 consecutive days.
(c) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when such payment is
prohibited by Section 14.02(a) or 15.02(b) of which the Trustee has actual
knowledge, the Trustee shall promptly notify the holders of Senior Indebtedness
of such prohibited payment and such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that, upon notice from the Trustee to the holders of Senior Indebtedness that
such prohibited payment has been made, the holders of the Senior Indebtedness
(or their representative or representatives of a trustee) within 30 days of
receipt of such notice from the Trustee notify the Trustee of the amounts then
due and owing on the Senior Indebtedness, if any, and only the amounts specified
in such notice to the Trustee shall be paid to the holders of Senior
Indebtedness and any excess above such amounts due and owing on Senior
Indebtedness shall be paid to the Company.
Section 14.03. Payment over Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets or securities
of the Company of any kind or character, whether in cash, property or
securities, in connection with any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary,
or in bankruptcy, insolvency, receivership or other proceedings or other
marshalling of assets for the benefit of creditors, all amounts due or to become
due upon all Senior Indebtedness (including any interest accruing subsequent to
an event specified in Sections 6.01(g) and 6.01(h), whether or not such interest
is an allowed claim enforceable against the debtor under the United States
Bankruptcy Code) shall first be paid in full, in cash or cash equivalents,
before the holders or the Trustee on their behalf shall be entitled to receive
any payment by the Company on account of principal, premium and interest on the
Notes , or any payment to acquire any of the Notes for cash, property or
securities, or any distribution with respect to the Notes of any cash, property
or securities. Before any payment may be made by, or on behalf of, the Company
on any principal, premium and interest on the
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Notes in connection with any such dissolution, winding up, liquidation or
reorganization, any payment or distribution of assets or securities for the
Company of any `kind or character, whether in cash, property or securities, to
which the holders or the Trustee on their behalf would be entitled, but for the
provisions of this Article XIV, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person making
such payment or distribution, or by the holders or the Trustee if received by
them or it, directly to the holders of Senior Indebtedness (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness held by
such holders) or their representatives or to any trustee or trustees under any
other indenture pursuant to which any such Senior Indebtedness may have been
issued, as their respective interests appear, to the extent necessary to pay all
such Senior Indebtedness in full, in cash or cash equivalents after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether
by or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then if such payment is
recovered by, or paid over to such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Indebtedness or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. To the extent the obligation to
repay any Senior Indebtedness is declared to be fraudulent, invalid, or
otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then the obligations so declared fraudulent, invalid
or otherwise set aside (and all other amounts that would come due with respect
thereto had such obligation not been affected) shall be deemed to be reinstated
and outstanding as Senior Indebtedness for all purposes hereof as if such
declaration, invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any holder at a time when
such payment or distribution is prohibited by Section 14.03(a) and before all
obligations in respect of Senior Indebtedness are paid in full, in cash or cash
equivalents, such payment or distribution shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness (pro rata to such holders on the basis of such respective
amount of Senior Indebtedness held by such holders) or their representatives, or
to the trustee or trustees under any indenture pursuant to which any such Senior
Indebtedness may have been issued, as their respective interests appear, for
application to the payment of Senior Indebtedness remaining unpaid until all
such Senior Indebtedness has been paid in full, in cash or cash equivalents,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.
(d) For purposes of this Section 14.03, the words "cash,
property or securities" shall not be deemed to include, so long as the effect of
this clause is not to cause the Notes to be treated in any case or proceeding or
similar event described in this Section 14.03. as part of the same class of
claims as the Senior Indebtedness or any class of claims pari passu with, or
senior to, the Senior Indebtedness for any payment or distribution, securities
of the
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Company or any other corporation provided for by a plan of reorganization or
readjustment that are subordinated, at least to the extent that the Notes are
subordinated, to the payment of all Senior Indebtedness then outstanding;
provided that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Indebtedness and (2) the
rights of the holders of the Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company with or into, another
corporation or the liquidation or dissolution of the Company following the sale,
conveyance, transfer, lease or other disposition of all or substantially all of
its property and assets to another corporation upon the terms and conditions
provided in Article XI shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 14.03 if such
other corporation shall, as a part of such consolidation, merger, sale,
conveyance, transfer, lease or other disposition; comply (to the extent
required) with the conditions stated in Article XI.
Section 14.04. Subrogation.
(a) Upon the payment in full of all Senior Indebtedness in
cash or cash equivalents, the holders shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such Senior Indebtedness until the
principal of premium, if any, and interest on the Notes shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the holders or the Trustee on their behalf would be entitled except for the
provisions of this Article XIV, and no payment pursuant to the provisions of
this Article XIV to the holders of Senior Indebtedness by holders or the Trustee
on their behalf shall, as between the Company, its creditors other than holders
of Senior Indebtedness, and the holders, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness. It is understood that the
provisions of this Article XIV are intended solely for the purpose of defining
the relative rights of the holders, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
(b) If any payment or distribution to which the holders would
otherwise have been entitled but for the provisions of this Article XIV shall
have been applied, pursuant to the provisions of this Article XIV, to the
payment of all amounts payable under Senior Indebtedness, then, and in such
case, the holders shall be entitled to receive from the holders of such Senior
Indebtedness any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount required to make payment in full, in cash
or cash equivalents, of such Senior Indebtedness of such holders.
Section 14.05. Obligations of Company Unconditional.
(a) Nothing contained in this Article XIV or elsewhere in this
Indenture or in the Notes is intended to or shall impair; as among the Company
and the holders, the obligation of the Company, which is absolute and
unconditional, to pay to the holders the principal of, premium, if any, and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the holders or
the Trustee on their behalf from exercising all
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remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XIV of the holders
of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing; nothing
contained in this Article XIV will restrict the right of the Trustee or the
holders to take any action to declare the Notes to be due and payable prior to
their Stated Maturity pursuant to Section 6.01 of this Indenture or to pursue
any rights or remedies hereunder; provided, however, that all Senior
Indebtedness then due and payable or thereafter declared to be due and payable
shall first be paid in full, in cash or cash equivalents, before the holders or
the Trustee are entitled to receive any direct or indirect payment from the
Company of principal, premium and interest on the Notes.
Section 14.06. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company that would prohibit the making of any
payment to or by the Trustee in respect of the Notes pursuant to the provisions
of this Article XIV. The Trustee shall not be charged with the knowledge of the
existence of any default or event of default with respect to any Senior
Indebtedness or of any other facts that would prohibit the making of any payment
to or by the Trustee unless and until the Trustee shall have received notice in
writing at its Principal Corporate Trust Office to that effect signed by a
Officer of the Company, or by a holder of Senior Indebtedness or trustee or
agent thereof; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article VII, be entitled to assume that no such facts exist;
provided that, if the Trustee shall not have received the notice provided for in
this Section 14.06 at least two Business Days prior to the date upon which, by
the terms of this Indenture, any monies shall become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Note), then, notwithstanding anything herein to the
contrary, the Trustee shall have full power and authority to receive any monies
from the Company and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it on or after such prior date, except for an acceleration of the
Notes prior to such application. Nothing contained in this Section 14.06 shall
limit the right of the holders of Senior Indebtedness to recover payments as
contemplated by this Article XIV. The foregoing shall not apply if the Payment
Agent is the Company. The Trustee shall be entitled to rely on the delivery to
it of a written notice by a Person representing himself or itself to be a holder
of any Senior Indebtedness (or a trustee on behalf of, or other representative
of, such holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee or representative on behalf of any such
holder.
(b) In the event that the Trustee determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XIV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XIV and, if such
evidence is not furnished to the Trustee, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
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Section 14.07. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities
referred to in this Article XIV, the Trustee and: the holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver; trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, delivered to the Trustee or to the holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XIV.
Section 14.08. Trustee's Relation to Senior Indebtedness.
(a) The Trustee and any paying agent shall be entitled to all
the rights set forth in this Article XIV with respect to any Senior Indebtedness
that may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Indebtedness and nothing in this
indenture shall deprive the Trustee or any paying agent of any of its rights as
such holder.
(b) With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIV, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness (except
as provided in Sections 15.02(c) and 15.03(c)) and shall not be liable to any
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to holders of Notes or to the Company or to any other person cash,
property or securities to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article XIV or otherwise.
Section 14.09. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior Indebtedness. No right of any
present or future holders of any Senior Indebtedness to enforce subordination as
provided in this Article XIV will at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with. The
provisions of this Article XIV are intended to be for the benefit of, and shall
be enforceable directly by, the holders of Senior Indebtedness.
Section 14.10. Holders Authorize Trustee to Effectuate
Subordination of Notes. Each holder by his acceptance of any Notes authorizes
and expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XIV, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the property and assets
of the Company, the filing of a claim for the unpaid balance of its Notes in the
form required in those proceedings. If the Trustee does not file a
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proper claim or proof in indebtedness in the form required in such proceeding at
least 30 days before the expiration of the time to file such claim or claims,
each holder of Senior Indebtedness is hereby authorized to file an appropriate
claim for and on behalf of the holders.
Section 14.11. Not to Prevent Events of Default. The failure
to make a payment on account of principal of, premium, if any, or interest on
the Notes by reason of any provision of this Article XIV will not be construed
as preventing the occurrence of an Event of Default.
Section 14.12. Trustee's Compensation Not Prejudiced. Nothing
in this Article XIV will apply to amounts due to the Trustee pursuant to other
sections of this Indenture, including Section 7.07.
Section 14.13. No Waiver of Subordination Provisions. Without
in any way limiting the generality of Section 14.09, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or
notice to the Trustee or the holders, without incurring responsibility to the
holders and without impairing or releasing the subordination provided in this
Article XIV or the obligations hereunder of the holders to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 14.14. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article XIV or elsewhere in this Indenture shall
prevent (i) the Company except under the conditions described in Section 14.02
or 15.03, from making payments of principal of, premium, if any, and interest on
the Notes, or from depositing with the Trustee any money for such payments, or
(ii) the application by the Trustee of any money deposited with it for the
purpose of making such payments of principal of, premium, if any, and interest
on the Notes to the holders entitled thereto unless, at least two Business Days
prior to the date upon which such payment becomes due and payable, the Trustee
shall have received the written notice provided for in Section 14.02(b) (or
there shall have been an acceleration of the Notes prior to such application) or
in Section 14.06. The Company shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation or reorganization of the Company.
Section 14.15. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VIII by the Trustee
for the payment of principal of, premium, if any, and interest on the Notes
shall not be subordinated to the prior payment of any Senior Indebtedness
(provided that at the time deposited, such deposit did not violate any then
outstanding Senior Indebtedness), and none of the holders shall be obligated to
pay over any such amount to any holder of Senior Indebtedness.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors. All
the covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
Section 15.02. Official Acts by Successor Corporation. Any act
or proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee or officer of any Person that shall at the time be the lawful sole
successor of the Company.
Section 15.03. Addresses for Notices, Etc. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Notes on the Company shall
be deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) to AGCO Corporation, 4205 River Green Parkway, Duluth, Georgia
30096, Attention: General Counsel. Any notice, direction, request or demand
hereunder to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or served by being deposited, postage
prepaid, by registered or certified mail in a post office letter box addressed
by the Company to the Principal Corporate Trust Office or by the Noteholders to
the Corporate Trust Office.
The Trustee, by notice to the Company, may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail, postage prepaid, at his address as it appears
on the Note register and shall be sufficiently given to him if so mailed within
the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 15.04. Governing Law. This Indenture and each Note
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State
of New York without reference to its principles of conflict of laws.
Section 15.05. Evidence of Compliance with Conditions
Precedent, Certificates to Trustee. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include: (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 15.06. Legal Holidays. In any case in which the date
of maturity of interest on or principal of the Notes or the redemption date or
repurchase date of any Note will not be a Business Day, then payment of such
interest on or principal of the Notes need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the redemption date or repurchase date, and no
interest shall accrue for the period from and after such date.
Section 15.07. Trust Indenture Act. This Indenture is hereby
made subject to, and shall be governed by, the provisions of the Trust Indenture
Act required to be part of and to govern indentures qualified under the Trust
Indenture Act; provided that unless otherwise required by law, notwithstanding
the foregoing, this Indenture and the Notes issued hereunder shall not be
subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section
314 of the Trust Indenture Act as now in effect or as hereafter amended or
modified; provided further that this Section 15.07 shall not require this
Indenture or the Trustee to be qualified under the Trust Indenture Act prior to
the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any
party to the Indenture that any such qualification is required prior to the time
such qualification is in fact required under the terms of the Trust Indenture
Act. If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall control.
Section 15.08. No Security Interest Created. Nothing in this
Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction in
which property of the Company or its subsidiaries is located.
Section 15.09. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto, any paying agent, any authenticating agent, any Note
registrar and their successors hereunder and the holders of Notes any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 15.10. Table of Contents, Headings, Etc. The table of
contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
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Section 15.11. Authenticating Agent. The Trustee may appoint
an authenticating agent that shall be authorized to act on its behalf, and
subject to its direction, in the authentication and delivery of Notes in
connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.04, 2.05, 2.06, 2.07 and 3.04, as
fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes "by the Trustee" and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent
shall be deemed to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such authenticating agent shall at all
times be a Person eligible to serve as trustee hereunder pursuant to Section
7.09.
Any corporation into which any authenticating agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
authenticating agent shall be a party, or any corporation succeeding to the
corporate trust business of any authenticating agent, shall be the successor of
the authenticating agent hereunder, if such successor corporation is otherwise
eligible under this Section 15.11, without the execution or filing of any paper
or any further act on the part of the parties hereto or the authenticating agent
or such successor corporation.
Any authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee may
at any time terminate the agency of any authenticating agent by giving written
notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any authenticating agent shall cease to be eligible under this Section,
the Trustee shall either promptly appoint a successor authenticating agent or
itself assume the duties and obligations of the former authenticating agent
under this Indenture and, upon such appointment of a successor authenticating
agent, if made, shall give written notice of such appointment of a successor
authenticating agent to the Company and, at the Company's expense, shall mail
notice of such appointment of a successor authenticating agent to all holders of
Notes as the names and addresses of such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from
time to time such reasonable compensation for its services as shall be agreed
upon in writing between the Company and the authenticating agent.
The provisions of Sections 7.03, 7.04, 7.05, 8.03 and this
Section 15.11 shall be applicable to any authenticating agent.
Section 15.12. Execution in Counterparts. This Indenture may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same instrument.
Section 15.13. Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to
the extent permitted by law) the validity,
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legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SunTrust Bank hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed.
AGCO CORPORATION, as Issuer
By: ______________________________
Name:
Title:
SUNTRUST BANK, as Trustee
By: ______________________________
Name:
Title:
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EXHIBIT A
[Include only for Global Notes:]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
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 NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
AGCO CORPORATION
FORM OF
6-7/8% SENIOR SUBORDINATED NOTE DUE 2014
CUSIP: 001084 AK 8
No. 1 (euro)200,000,000
AGCO CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the "COMPANY",
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received hereby promises to pay to Cede & Co. or
its registered assigns, the principal sum of TWO HUNDRED MILLION EUROS on April
15, 2014 at the office or agency of the Company maintained for that purpose in
accordance with the terms of the Indenture, in Euros or in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest, semiannually
on April 15 and October 15 of each year, commencing October 15, 2004, on said
principal sum at said office or agency, in like coin or currency, at the rate
per annum of 6-7/8%, from the April 15 or October 15, as the case may be, next
preceding the date of this Note to which interest has been paid or duly provided
for, unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or unless no interest
has been paid or duly provided for on the Notes, in which case from April 23,
2004 until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after any April 1 or
October 1, as the case may be, and before the following April 15 or October 15,
this Note shall bear interest from such April 15 or October 15; provided that if
the Company shall default in the payment of interest due on such April 15 or
October 15, then this Note shall bear interest from the next preceding April 15
or October 15 to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on such Note, from April 23, 2004.
Except as otherwise provided in the Indenture, the interest payable on the Note
pursuant to the Indenture on any April 15 or October 15 will be paid to the
Person entitled thereto as it appears in the Note register at the close of
business on the record date, which shall be the April 1 or October 1 (whether or
not a Business Day) next preceding such April 15 or October 15, as provided in
the Indenture; provided that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture. Interest may, at the
option of the Company, be paid either (i) by check mailed to the registered
address of such Person (provided that the holder of Notes with an aggregate
principal amount in excess of (euro)2,000,000 shall, at the written election
(timely made and containing appropriate wire transfer information) of such
holder, be paid by wire transfer of immediately available funds) or (ii) by
transfer to an account maintained by such Person located in the United States;
provided that payments to the Depositary will be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal and
premium, if any, (to the extent that payment of such interest is enforceable
under applicable law) at the rate of 7-7/8%, per annum.
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Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws
of the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of the State of New York without reference to its
principles of conflict of laws.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or a duly authorized authenticating agent under the
Indenture.
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IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed.
AGCO CORPORATION
By: __________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
SUNTRUST BANK, as Trustee
By: _____________________________
Authorized Officer
Dated:
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FORM OF REVERSE OF NOTE
AGCO CORPORATION
6-7/8% SENIOR SUBORDINATED NOTE DUE 2014
This Note is one of a duly authorized issue of Notes of the
Company, designated as its 6-7/8% Senior Subordinated Notes Due 2014 (herein
called the "NOTES"), limited in aggregate principal amount to (euro)200,000,000,
issued and to be issued under and pursuant to an Indenture dated as of April 23,
2004 (herein called the "INDENTURE"), between the Company and SunTrust Bank, as
trustee (herein called the "TRUSTEE"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes.
In case an Event of Default shall have occurred and be
continuing, the principal of, and premium, if any, and accrued interest on, all
Notes may be declared by either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Notes then outstanding, and upon said
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the holders of the Notes; provided that no such
supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or change the time of payment of interest thereon, or reduce the
principal amount thereof or premium, if any, thereon or reduce any amount
payable on redemption or repurchase thereof, or impair the right of any
Noteholder to institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any coin or currency
or payable at any place other than that provided in the Indenture or the Notes,
or change the obligation of the Company to redeem any Note on a redemption date
in a manner adverse to the holders of Notes, or change the obligation of the
Company to repurchase any Note on a repurchase date in a manner adverse to the
holders of Notes, or reduce the quorum or the voting requirements under the
Indenture, or modify any of the provisions of Section 10.02 or Section 6.07,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Note so affected, or change any obligation of the Company to
maintain an office or agency in the places and for the purposes set forth in
Section 4.01 thereof, in each case, without the consent of the holder of each
Note so affected, or (ii) reduce the aforesaid percentage of Notes, the holders
of which are required to consent to any such supplemental indenture or to waive
any past Event of Default, without the consent of the holders of each Notes
affected thereby. Subject to the provisions of the Indenture, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any past Default or Event of
Default under the Indenture and its consequences except a Default in the payment
of interest, or any premium on or the principal of, any of the Notes, or a
Default in the payment of the redemption price, or a
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Default in the payment of the repurchase price on a repurchase date, or a
Default in respect of a covenant or provisions of the Indenture which under
Article X of the Indenture cannot be modified or amended without the consent of
the holders of each or all Notes then outstanding or affected thereby. Any such
consent or waiver by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, and any premium
and interest on, this Note at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
The Notes are issuable in fully registered form, without
coupons, in denominations of (euro)1,000 principal amount and any multiple of
(euro)1,000. At the office or agency of the Company referred to on the face
hereof, and in the manner and subject to the limitations provided in the
Indenture, without payment of any service charge but with payment of a sum
sufficient to cover any tax, assessment or other governmental charge that may be
imposed in connection with any registration or exchange of Notes, Notes may be
exchanged for a like aggregate principal amount of Notes of any other authorized
denominations.
At any time on or after April 15, 2009, the Notes may be
redeemed at the option of the Company, in whole or in part, in cash, upon
mailing a notice of such redemption not less than 30 days but not more than 60
days before the redemption date to the holders of Notes at their last registered
addresses, all as provided in the Indenture, at 100% of the principal amount of
the Notes to be redeemed, together with accrued and unpaid interest, if any, to,
but excluding the date fixed for redemption; provided that if the redemption
date is on a April 15 or October 15, then the interest payable on such date
shall be paid to the holder of record on the preceding April 1 or October 1,
respectively:
The Company may not give notice of any redemption of the Notes
if a default in the payment of interest or premium, if any, on the Notes has
occurred and is continuing.
The Notes are not subject to redemption through the operation
of any sinking fund.
Any Notes called for redemption may be deemed to be redeemed
from the holders of such Notes for an amount equal to the applicable redemption
price, together with accrued but unpaid interest to, but excluding, the date
fixed for redemption, by one or more investment banks or other purchasers who
may agree with the Company to make payment for such Notes as aforesaid to the
Trustee in trust for the holders.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Company maintained for that purpose in accordance
with the terms of the
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Indenture, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange thereof,
subject to the limitations provided in the Indenture, without charge except for
any tax, assessment or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any authenticating agent, any paying
agent and any Note registrar may deem and treat the registered holder hereof as
the absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or any Note registrar) for the purpose of receiving
payment hereof, or on account hereof and for all other purposes, and neither the
Company nor the Trustee nor any other authenticating agent nor any paying agent
nor any Note registrar shall be affected by any notice to the contrary. All
payments made to or upon the order of such registered holder shall, to the
extent of the sum or sums paid, satisfy and discharge liability for monies
payable on this Note.
No recourse for the payment of the principal of, or any
premium or interest on, this Note, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any supplemental indenture or in
any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, agent, officer or
director or subsidiary, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
Terms used in this Note and defined in the Indenture are used
herein as therein defined.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of
the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___ Custodian __
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as tenants ____________________________
in common (State)
Additional abbreviations may also be used though not in the
above list.
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