Exhibit 4.2
BALL CORPORATION
And
GUARANTORS
Parties Hereto
$300,000,000
6 7/8% SENIOR NOTES DUE 2012
---------------------------------------------
INDENTURE
DATED AS OF DECEMBER 19, 2002
-------------------------------------------
THE BANK OF NEW YORK
Trustee
------------------------------------------
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................. 7.10
(a)(2)............................................... 7.10
(a)(3)............................................... N.A.
(a)(4) .............................................. N.A.
(a)(5) .............................................. 7.10
(b).................................................. 7.10
(c).................................................. N.A.
311(a).................................................... 7.11
(b).................................................. 7.11
(c).................................................. N.A.
312(a).................................................... 2.05
(b).................................................. 12.03
(c).................................................. 12.03
313(a).................................................... 7.06
(b)(2)............................................... 7.07
(c).................................................. 7.06; 12.02
(d).................................................. 7.06
314(a).................................................... 4.03; 12.02
(b).................................................. N.A.
(c)(1)............................................... 12.04
(c)(2)............................................... 12.04
(c)(3)............................................... N.A.
(e).................................................. 12.05
(f).................................................. N.A.
315(a).................................................... 7.01
(b).................................................. 7.05, 12.02
(c).................................................. 7.01
(d).................................................. 7.01
(e).................................................. 6.11
316(a) (last sentence).................................... 2.09
(a)(1)(A)............................................ 6.05
(a)(1)(B)............................................ 6.04
(a)(2)............................................... N.A.
(b).................................................. 6.07
(c).................................................. 2.12
317(a)(1)................................................. 6.08
(a)(2)............................................... 6.09
(b).................................................. 2.04
318(a).................................................... 12.01
(b).................................................. N.A.
(c).................................................. 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions....................................................................................1
Section 1.02 Other Definitions.............................................................................15
Section 1.03 Incorporation by Reference of Trust Indenture Act.............................................16
Section 1.04 Rules of Construction.........................................................................16
ARTICLE 2.
THE SENIOR NOTES
Section 2.01 Form and Dating...............................................................................17
Section 2.02 Execution and Authentication..................................................................18
Section 2.03 Registrar and Paying Agent....................................................................18
Section 2.04 Paying Agent to Hold Money in Trust...........................................................19
Section 2.05 Holder Lists..................................................................................19
Section 2.06 Transfer and Exchange.........................................................................19
Section 2.07 Replacement Notes.............................................................................31
Section 2.08 Outstanding Notes.............................................................................31
Section 2.09 Treasury Notes................................................................................32
Section 2.10 Temporary Notes...............................................................................32
Section 2.11 Cancellation..................................................................................32
Section 2.12 Defaulted Interest............................................................................32
Section 2.13 CUSIP Number..................................................................................32
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notice to Trustee.............................................................................33
Section 3.02 Selection of Notes to Be Redeemed.............................................................33
Section 3.03 Notice of Redemption..........................................................................33
Section 3.04 Effect of Notice of Redemption................................................................34
Section 3.05 Deposit of Redemption Price...................................................................34
Section 3.06 Notes Redeemed in Part........................................................................34
Section 3.07 Optional Redemption...........................................................................35
Section 3.08 Mandatory Redemption..........................................................................35
Section 3.09 Offer to Purchase by Application of Excess Proceeds...........................................35
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes..............................................................................37
Section 4.02 Maintenance of Office or Agency...............................................................37
Section 4.03 Reports.......................................................................................38
Section 4.04 Compliance Certificate........................................................................38
Section 4.05 Taxes.........................................................................................39
Section 4.06 Stay, Extension and Usury Laws................................................................39
Section 4.07 Restricted Payments...........................................................................39
Section 4.08 Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries....................42
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified and Preferred Stock...................43
Section 4.10 Asset Sales...................................................................................46
Section 4.11 Transactions With Affiliates..................................................................48
Section 4.12 Liens.........................................................................................49
Section 4.13 Business Activities...........................................................................49
Section 4.14 Corporate Existence...........................................................................50
Section 4.15 Offer to Purchase Upon Change of Control......................................................50
Section 4.16 Additional Guarantees.........................................................................51
Section 4.17 Payment for Consents..........................................................................51
Section 4.18 Sale and Leaseback Transactions...............................................................51
Section 4.19 No Amendment to Subordination Provisions......................................................52
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.......................................52
Section 4.21 Certain Covenants to Be Suspended Under Certain Conditions....................................52
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets.......................................................52
Section 5.02 Successor Corporation Substituted.............................................................53
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.............................................................................54
Section 6.02 Acceleration..................................................................................55
Section 6.03 Other Remedies................................................................................56
Section 6.04 Waiver of Past Defaults.......................................................................56
Section 6.05 Control by Majority...........................................................................56
Section 6.06 Limitation on Suits...........................................................................56
Section 6.07 Rights of Holders of Notes to Receive Payment.................................................57
Section 6.08 Collection Suit by Trustee....................................................................57
Section 6.09 Trustee May File Proofs of Claim..............................................................57
Section 6.10 Priorities....................................................................................57
Section 6.11 Undertaking for Costs.........................................................................58
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.............................................................................58
Section 7.02 Rights of Trustee.............................................................................59
Section 7.03 Individual Rights of Trustee..................................................................60
Section 7.04 Trustee's Disclaimer..........................................................................60
Section 7.05 Notice of Defaults............................................................................60
Section 7.06 Reports by Trustee to Holders of the Notes....................................................61
Section 7.07 Compensation and Indemnity....................................................................61
Section 7.08 Replacement of Trustee........................................................................62
Section 7.09 Successor Trustee by Merger, Etc..............................................................63
Section 7.10 Eligibility; Disqualification.................................................................63
Section 7.11 Preferential Collection of Claims Against Company.............................................63
Section 7.12 Trustee's Application for Instructions from the Company.......................................63
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance......................................63
Section 8.02 Legal Defeasance and Discharge................................................................63
Section 8.03 Covenant Defeasance...........................................................................64
Section 8.04 Conditions to Legal or Covenant Defeasance....................................................64
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.................................................................................65
Section 8.06 Repayment to Company..........................................................................66
Section 8.07 Reinstatement.................................................................................66
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes...........................................................66
Section 9.02 With Consent of Holders of Notes..............................................................67
Section 9.03 Compliance With Trust Indenture Act...........................................................68
Section 9.04 Revocation and Effect of Consents.............................................................69
Section 9.05 Notation on or Exchange of Notes..............................................................69
Section 9.06 Trustee to Sign Amendments, Etc...............................................................69
ARTICLE 10.
Note GUARANTEES
Section 10.01 Guarantee.....................................................................................69
Section 10.02 Limitation on Guarantor Liability.............................................................70
Section 10.03 Execution and Delivery of Guarantee...........................................................70
Section 10.04 Guarantors May Consolidate, etc. on Certain Terms.............................................71
Section 10.05 Releases Following Sale of Assets.............................................................72
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge....................................................................72
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls..................................................................73
Section 12.02 Notices.......................................................................................73
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.................................74
Section 12.04 Certificate and Opinion as to Conditions Precedent............................................74
Section 12.05 Statements Required in Certificate............................................................74
Section 12.06 Rules by Trustee and Agents...................................................................75
Section 12.07 Calculation of Foreign Currency Amounts.......................................................75
Section 12.08 No Personal Liability of Directors, Officers, Employees and Stockholders......................75
Section 12.09 Governing Law.................................................................................75
Section 12.10 No Adverse Interpretation of Other Agreements.................................................75
Section 12.11 Successors....................................................................................76
Section 12.12 Severability..................................................................................76
Section 12.13 Counterpart Originals.........................................................................76
Section 12.14 Table of Contents, Headings, Etc..............................................................76
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SENIOR NOTE INDENTURE dated as of December 19, 2002 by and among Ball
Corporation, an Indiana corporation (the "Company"), the Guarantors (as
defined below) and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes
hereunder:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness, including Disqualified Stock, of any other Person existing at
the time such other Person is merged with or into, becomes a Restricted
Subsidiary of such specified Person or is otherwise assumed by such specified
Person in connection with an acquisition of assets from such Person, whether
or not such Indebtedness is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a Restricted
Subsidiary of, such specified Person or the acquisition of assets from such
person.
"Acquisition" means the acquisition by the Company of 100% of the
capital stock of Schmalbach-Lubeca AG pursuant to the Share Sale and Transfer
Agreement entered into on August 29, 2002.
"Additional Assets" means:
(1) any property or assets, other than Capital Stock,
Indebtedness or rights to receive payments over a period greater than
180 days, that are usable by the Company or a Restricted Subsidiary
in a Permitted Business; or
(2) the Capital Stock of a Person that is at the time, or
becomes, a Restricted Subsidiary as a result of the acquisition of
such Capital Stock by the Company or another Restricted Subsidiary.
"Additional Notes" means any Notes (other than the Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof,
as part of the same series as the Initial Notes.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, that beneficial ownership of
10% or more of the Voting Stock of a Person shall be deemed to be in control.
For purposes of this definition, the terms "controlling," "controlled by" and
"under common control with" have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights other than in the ordinary course of business
consistent with past practices; provided, that the sale, lease,
conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a
whole will be governed by the provisions of this Indenture described
under Section 4.15 and/or the provisions described under Section 5.01
hereof and not by the provisions of Section 4.10 hereof; and
(2) the issuance or sale of Equity Interests in any of the
Company's Restricted Subsidiaries, and in the case of either clause
(1) or (2), whether in a single transaction or series of related
transactions (a) that have a fair market value in excess of $10
million or (b) for Net Proceeds in excess of $10 million.
Notwithstanding the preceding, none of the following items will be deemed to
be an Asset Sale:
(1) a transfer of assets or rights by the Company to a
Restricted Subsidiary of the Company or by a Restricted Subsidiary of
the Company to the Company or another Restricted Subsidiary of the
Company;
(2) an issuance or sale of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to another Restricted
Subsidiary of the Company;
(3) the sale or lease of equipment, inventory, accounts
receivable or other current assets in the ordinary course of
business;
(4) the sale or other disposition of cash or Cash
Equivalents;
(5) a Restricted Payment that is not prohibited by Section
4.07 or a Permitted Investment;
(6) sales, conveyances or other transfers of receivables and
related assets (A) to a Securitization Entity or to another Person as
contemplated by the definition of "Qualified Securitization
Transaction" in a Qualified Securitization Transaction or (B) in
connection with the Schmalbach Receivables Facility;
(7) the sale or disposition of obsolete, uneconomical, worn
out or surplus property or equipment;
(8) the surrender or waiver of contract rights or
settlement, release or surrender of a contract, tort or other
litigation claim in the ordinary course of business;
(9) the granting of Liens not prohibited by this Indenture;
(10) any exchange of like property pursuant to Section 1031
of the Internal Revenue Code of 1986, as amended, for use in a
Permitted Business;
(11) the lease, assignment or sublease of any real or
personal property in the ordinary course of business; and
(12) any sale of Equity Interests in, or Indebtedness or
other securities of, an Unrestricted Subsidiary.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of
the lessee for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction including any period for which
such lease has been extended or may, at the option of the lessor, be extended.
Such present value shall be calculated using a discount rate equal to the rate
of interest implicit in such transaction, determined in accordance with GAAP.
"Ball Asia Pacific" means Ball Asia Pacific Limited, a Hong Kong
company, and its affiliates and joint ventures.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person", as that term is used in
Section 13(d)(3) of the Exchange Act, such "person" will be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned"
have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents, however designated, of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership or membership interests, whether general or
limited; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government having maturities of
not more than one year from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits
with maturities of not more than one year from the date of
acquisition, bankers' acceptances with maturities of not more than
one year from the date of acquisition and overnight bank deposits, in
each case, with any domestic commercial bank having capital and
surplus in excess of $500 million and a Thomson Bank Watch Rating of
"B" or better;
(4) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in
clauses (2) and (3) above entered into with any financial institution
meeting the qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable
from Moody's, or one of the two highest ratings from S&P and in each
case maturing within six months after the date of acquisition;
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition; and
(7) in the case of any Foreign Subsidiary;
(a) direct obligations of the sovereign
nation, or any agency thereof, in which
such Foreign Subsidiary is organized and
is conducting business or in obligations
fully and unconditionally guaranteed by
such sovereign nation, or any agency
thereof;
(b) investments of the type and maturity
described in clauses (1) through (6) above
of foreign obligors, which investments or
obligors have ratings described in such
clauses or equivalent ratings from
comparable foreign rating agencies; or
(c) investments of the type and maturity
described in clauses (1) through (6) above
of foreign obligors which investments or
obligors are not rated as provided in such
clauses or in clause (b) above but which
are, in the reasonable judgment of the
Company, comparable in investment quality
to such investments and obligors, or the
direct or indirect parent of such
obligors.
"Change of Control" means the occurrence of any of the following:
(1) the sale, transfer, conveyance or other disposition,
other than by way of merger or consolidation, in one or a series of
related transactions, of all or substantially all of the assets of
the Company and its Restricted Subsidiaries taken as a whole to any
"person", as that term is used in Section 13(d)(3) of the Exchange
Act;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(3) the consummation of any transaction, including, without
limitation, any merger or consolidation, the result of which is that
any "person," as defined above, becomes the ultimate Beneficial
Owner, directly or indirectly, of more than 50% of the Voting Stock
of the Company, measured by voting power rather than number of
shares;
(4) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors; or
(5) the Company consolidates with, or merges with or into,
any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares
of such Voting Stock of such surviving or transferee Person
(immediately after giving effect to such issuance).
"Clearstream" means Clearstream Banking, societe anonyme.
"Company" means Ball Corporation, and any and all successors
thereto.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period
plus:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was included in computing such
Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized, including, without limitation,
amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers'
acceptance financings and receivables financings, and net payments,
if any, pursuant to Hedging Obligations, to the extent that any such
expense was deducted in computing such Consolidated Net Income; plus
(4) depreciation, amortization, including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period, and other non-cash
expenses, excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period, of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net
Income; minus
(5) non-cash items increasing such Consolidated Net Income
for such period, other than items that were accrued in the ordinary
course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined
in accordance with GAAP; provided, that:
(1) the Net Income (but not loss) of any Person (other than
the Company) that is not a Restricted Subsidiary or that is accounted
for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid in cash to
the specified Person or a Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends
or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any
prior governmental approval, that has not been obtained or, directly
or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or
its stockholders;
(3) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition shall be excluded; and
(4) the cumulative effect of a change in accounting
principles shall be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
this Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities, including,
without limitation, the New Credit Facilities, or commercial paper facilities,
in each case with banks, investment funds or other lenders providing for
revolving credit loans, term loans, receivables financings, including through
the sale of receivables to such lenders or to special purpose entities formed
to borrow from such lenders against such receivables or letters of credit, in
each case, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.
"Designated Noncash Consideration" means the fair market value of
noncash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, executed by the principal executive officer
and the principal financial officer of the Company, less the amount of cash or
Cash Equivalents received in connection with a sale of such Designated Noncash
Consideration.
"Disqualified Stock" means any Capital Stock that, by its terms, or
by the terms of any security into which it is convertible or for which it is
exchangeable, in each case at the option of the holder of the security, or
upon the happening of any event, matures, excluding any maturity as the result
of the optional redemption thereof, or is mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise, or redeemable at the option of the
holder, in whole or in part, on or prior to the date on which the Notes
mature, except to the extent that such Capital Stock is solely redeemable
with, or solely exchangeable for, any Equity Interests of the Company that are
not Disqualified Stock; provided, however, that only the portion of the
Capital Stock or other security which so matures, is mandatorily redeemable or
is so redeemable at the option of the holder prior to such date shall be
deemed to be Disqualified Stock; provided further that if such Capital Stock
or other security is issued to any employee or to any plan for the benefit of
employees of the Company or its Subsidiaries or by any such plan to such
employees, such Capital Stock or other security shall not constitute
Disqualified Stock solely because it may be required to be repurchased by the
Company or any of its Subsidiaries in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee's termination, death or
disability. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of the Capital
Stock have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to
such provisions unless such repurchase or redemption complies with Section
4.07 hereof.
"Domestic Subsidiary" means a Subsidiary that is formed under the
laws of the United States or any state of the United States or the District of
Columbia or that guarantees or otherwise provides direct credit support for
any Indebtedness of the Company or its Domestic Subsidiaries.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock, but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock.
"Equity Offering" means:
(1) an offering or sale of Capital Stock, other than
Disqualified Stock, of the Company; or
(2) the contribution of cash to the Company as an equity
capital contribution, other than in respect of Disqualified Stock.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Excluded Subsidiary" means each of the following Subsidiaries of the
Company: Ball Corporation, a Nevada corporation; Ball Glass Containers, Inc.,
a Delaware corporation; Ball Metal Container Corporation, an Indiana
corporation; Ball Technology Licensing Corporation, an Indiana corporation;
Heekin Can, Inc., a Colorado corporation; Muncie and Western Railroad Company,
an Indiana corporation; Ball Asia Services Limited, a Delaware corporation;
Ball Glass Container Corporation, a Delaware corporation; Ball Holdings Corp.,
a Delaware corporation; Ball Technology Services Corporation, a California
corporation; Laser Communications International L.L.C., a Delaware limited
liability company and Space Operations International, L.L.C., a Maryland
limited liability company, together with such other Subsidiaries of the
Company as may from time to time be designated by the Company as "Excluded
Subsidiaries" pursuant to an Officers' Certificate delivered to the Trustee;
provided, that each such Subsidiary shall be an Excluded Subsidiary only if
and only for so long as:
(1) the aggregate of the net sales of all such Subsidiaries
shall not exceed $10 million in any twelve-month period; and
(2) the aggregate of the assets, including capitalization,
of all such Subsidiaries as of any date shall not exceed $10 million.
"Existing Indebtedness" means Indebtedness of the Company, the
Company's Restricted Subsidiaries and Schmalbach-Lubeca AG and its
Subsidiaries, other than Indebtedness under the New Credit Facilities, in
existence on the date of this Indenture.
"Existing Notes" means the Existing Senior Notes and the Existing
Subordinated Notes.
"Existing Senior Notes" means up to $300 million of the Company's 7
3/4% Senior Notes due 2006.
"Existing Subordinated Notes" means up to $250 million of the
Company's 8 1/4% Senior Subordinated Notes due 2008.
"Existing Subordinated Notes Indenture" means the indenture governing
the Company's Existing Subordinated Notes.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
and its Restricted Subsidiaries for such period to the Fixed Charges of such
Person its Restricted Subsidiaries for such period. In the event that the
specified Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness (other than
ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall
be calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase or redemption of Indebtedness, or such
issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be
deemed to have occurred on the first day of the four-quarter
reference period and Consolidated Cash Flow for such reference period
shall be calculated without giving effect to clause (3) of the
proviso set forth in the definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be
excluded; and
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to
such Fixed Charges will not be obligations of the specified Person or
any of its Restricted Subsidiaries following the Calculation Date.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, to the extent properly characterized
as interest expense in accordance with GAAP, amortization of debt
issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings, and net
payments, if any, pursuant to Hedging Obligations;
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period;
(3) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon; and
(4) all dividend payments, whether or not in cash, on any
series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely
in Equity Interests of the Company, other than Disqualified Stock, or
to the Company or a Restricted Subsidiary of the Company.
"Foreign Subsidiaries" means Subsidiaries of the Company that are not
Domestic Subsidiaries.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board and such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are applicable as of the date of this
Indenture.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee, other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof, of all or any part of any Indebtedness.
"Guarantors" means:
(1) each of Ball Aerospace & Technologies Corp., a Delaware
corporation, Ball Metal Beverage Container Corp., a Colorado
corporation, Ball Metal Food Container Corp., a Delaware corporation,
Ball Metal Packaging Sales Corp., a Colorado corporation, Ball
Packaging Corp., a Colorado corporation, Ball Plastic Container
Corp., a Colorado corporation, Ball Technologies Holdings Corp., a
Colorado corporation, Latas de Aluminio Ball, Inc., a Delaware
corporation, Ball Pan-European Holdings, Inc., a Delaware
corporation, BG Holdings I, Inc., a Delaware corporation, BG Holdings
II, Inc., a Delaware corporation, Efratom Holding, Inc., a Colorado
corporation, and any other Domestic Subsidiary of the Company as of
the date of this Indenture (other than Ball Capital Corp., Ball Asia
Pacific, any other Unrestricted Subsidiary and the Excluded
Subsidiaries); and
(2) any other Subsidiary of the Company that executes a
Supplemental Indenture in the form of Exhibit F and becomes a
Guarantor in accordance with the provisions of this Indenture;
and their respective successors and assigns.
"Hedging Counterparty" means, with respect to any Hedging
Obligations, any counterparty thereto, at the time such Hedging Obligations
are initially incurred, that is a holder, or an Affiliate thereof, of
Indebtedness under any Credit Facilities. For clarification, such counterparty
(and its successors and assigns) shall be deemed a Hedging Counterparty even
if it or its Affiliate ceases to be a holder of Indebtedness under any Credit
Facilities for any reason.
"Hedging Obligations" means, with respect to any specified Person,
the net payment Obligations of such Person under:
(1) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(2) other agreements or arrangements in respect of such
Person's exposure to fluctuations in commodity prices, currency
exchange rates or interest rates and, in each case, not entered into
for speculative purposes.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means the global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or reimbursement agreements in
respect thereof;
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items, other than letters of credit
and Hedging Obligations, would appear as a liability upon a balance sheet of
the specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person, whether or not such Indebtedness is assumed by
the specified Person, and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person or any
liability of any person, whether or not contingent and whether or not it
appears on the balance sheet of such Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of
any Indebtedness that does not require the current payment of
interest; and
(2) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due,
in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended, supplemented or
restated from time to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the first $300 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons, including Affiliates, in the form of loans,
including Guarantees of Indebtedness or other Obligations, advances or capital
contributions, excluding commission, travel, entertainment, moving and similar
advances to officers and employees made in the ordinary course of business,
prepaid expenses and accounts receivable, purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Equity Interests
of any direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, such Person is no longer
a direct or indirect Restricted Subsidiary of the Company, the Company or such
Restricted Subsidiary, as the case may be, shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary that were
not sold or disposed of in an amount determined as provided in the final
paragraph of Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal office
of the Trustee is located or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement or any lease
in the nature thereof; provided that in no event shall an operating lease be
deemed to constitute a Lien.
"Limited Originator Recourse" means a reimbursement obligation to the
Company or a Restricted Subsidiary in connection with a drawing on a letter of
credit, revolving loan commitment, cash collateral account or other such
credit enhancement issued to support Indebtedness of a Securitization Entity
under a facility for the financing of trade receivables; provided, that the
available amount of any such form of credit enhancement at any time shall not
exceed 10% of the principal amount of such Indebtedness at such time.
"Liquidated Damages" means the liquidated damages then owing under
the Registration Rights Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" means, with respect to any specified Person, the net
income or loss of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision
for taxes on such gain or loss, realized in connection with the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person
or any of its Restricted Subsidiaries;
(2) any extraordinary gain or loss, together with any
related provision for taxes on such extraordinary gain or loss; and
(3) any one-time noncash charges (including legal,
accounting and debt issuance costs) resulting from the Transactions.
"Net Proceeds" means the aggregate cash proceeds or Cash Equivalents
received by the Company or any of its Restricted Subsidiaries in respect of
any Asset Sale, including, without limitation, any cash received upon the sale
or other disposition of any non-cash consideration received in any Asset Sale,
net of all costs relating to such Asset Sale, including, without limitation,
legal, accounting, investment banking and brokers fees, and sales and
underwriting commissions, and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements), and
amounts required to be applied to the repayment of Indebtedness, other than
Indebtedness under a Credit Facility secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance
with GAAP.
"New Credit Facilities" means that certain credit facility, to be
entered into in connection with the transactions, which will consist of term
loan facilities in the amounts of $350 million, (euro)414 million and
(pound)79 million and revolving credit facilities in an aggregate U.S. dollar
equivalent amount of $450 million.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its
Restricted Subsidiaries, other than a Securitization Entity, if
applicable, (a) provides credit support of any kind, including any
undertaking, agreement or instrument that would constitute
Indebtedness, (b) is directly or indirectly liable as a guarantor or
otherwise or (c) constitutes the lender;
(2) no default with respect to which, including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary, would permit upon notice,
lapse of time or both any holder of any other Indebtedness, other
than the Notes, of the Company or any of its Restricted Subsidiaries
to declare a default on such other Indebtedness or cause the payment
of the Indebtedness to be accelerated or payable prior to its stated
maturity; and
(3) as to which the lenders have been notified in writing
that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries, other than a
Securitization Entity, if applicable.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" means notes issued under this Indenture. The Initial Notes
and the Additional Notes shall be treated as a single class for all purposes
under this Indenture, and unless the context otherwise requires, all
references to the Notes shall include the Initial Notes and any Additional
Notes.
"Obligations" means any principal, premium, if any, interest,
including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or its Restricted
Subsidiaries whether or not a claim for post-filing interest is allowed in
such proceeding, penalties, fees, charges, expenses, indemnifications,
reimbursement obligations, damages, including liquidated damages, guarantees
and other liabilities or amounts payable under the documentation governing any
Indebtedness or in respect thereof.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be a vice-president,
the principal financial officer, the treasurer or the principal accounting
officer of the Company, that meets the requirements of Sections 12.04 and
12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
acceptable to the Trustee, that meets the requirements of Sections 12.04 and
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Participating Broker-Dealer" means a broker-dealer participating in
the Exchange Offer.
"Permitted Business" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the date of this Indenture and
businesses substantially similar, related or incidental thereto or reasonable
extensions thereof.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person engaged in a Permitted
Business, if as a result of such Investment:
(a) such Person becomes a Restricted
Subsidiary of the Company; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or
conveys substantially all of its assets
to, or is liquidated into, the Company or
a Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with Section 4.10 hereof (including, without
limitation, any sale or other disposition of all or a portion of the
business constituting the aerospace and technologies segment of the
Company) or any other disposition of assets not constituting an Asset
Sale;
(5) any Investment made in exchange for the issuance of
Equity Interests, other than Disqualified Stock, of the Company;
(6) other Investments in any Person having an aggregate fair
market value, measured on the date each such Investment was made and
without giving effect to subsequent changes in value, when taken
together with all other Investments made pursuant to this clause (6)
since the date of this Indenture not to exceed 2.5% of Total Assets;
(7) Hedging Obligations;
(8) (a) any Investment by the Company or a Restricted
Subsidiary of the Company in a Securitization Entity or any
Investment by a Securitization Entity in any other Person in
connection with a Qualified Securitization Transaction; provided,
that any Investment in a Securitization Entity is in the form of a
Purchase Money Note or an Equity Interest, or (b) any sale or
transfer of receivables in connection with the Schmalbach Receivables
Facility;
(9) any Investment existing on the date of this Indenture
and any amendment, modification, restatement, supplement, extension,
renewal, refunding, replacement, or refinancing, in whole or in part,
thereof;
(10) any Investments received in satisfaction of judgments,
settlements of debt or compromises of obligations incurred in the
ordinary course of business, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or
insolvency of any trade creditor or customer;
(11) any Investment in Ball Asia Pacific, the proceeds of
which are used to permanently repay Indebtedness of Ball Asia Pacific
in an amount up to the amount that was outstanding on August 10,
1998, plus any interest, prepayment penalty and reasonable costs
associated with such repayment;
(12) Investments in Permitted Joint Ventures of up to $50
million outstanding at any time;
(13) receivables owing to the Company or any Restricted
Subsidiary of the Company if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms; provided that such trade terms may include
such concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
(14) Investments deemed to have been made as a result of the
acquisition of a Person that at the time of such acquisition held
instruments constituting Investments that were not acquired in
contemplation of the acquisition of such Person;
(15) Investments in prepaid expenses and lease, utility and
workers' compensation performance and other similar deposits;
(16) commission, payroll, travel and similar advances to
employees in the ordinary course of business;
(17) Investments consisting of intercompany indebtedness not
prohibited under this Indenture;
(18) Investments consisting of the licensing or contribution
of intellectual property pursuant to joint marketing arrangements
with other Persons; and
(19) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract
rights or licenses or leases of intellectual property, in each case
in the ordinary course of business.
"Permitted Joint Venture" means an entity characterized as a joint
venture, however structured, engaged in a Permitted Business and in which the
Company or a Restricted Subsidiary (a) owns at least 40% of the ownership
interest or (b) has a right to receive at least 40% of the profits or
distributions; provided that such joint venture is not a Subsidiary of the
Company.
"Permitted Liens" means:
(1) Liens on assets, including, without limitation, the
capital stock of a Subsidiary, of the Company or any of its
Restricted Subsidiaries to secure Indebtedness under any Credit
Facilities that is permitted by the terms of this Indenture to be
incurred, whether pursuant to the terms of the first or second
paragraph of Section 4.09 hereof or otherwise;
(2) Liens on the assets, including, but not limited to, the
capital stock of a Subsidiary, of the Company or any of its
Restricted Subsidiaries to secure Indebtedness in respect of any
Hedging Obligations to any Hedging Counterparty, but only to the
extent that such Hedging Obligations relate to Indebtedness that is
permitted by the terms of this Indenture to be incurred;
(3) Liens on property or assets of a Person existing at the
time such Person is acquired by, or merged into or consolidated with,
the Company or any Restricted Subsidiary of the Company; provided,
that such Liens were not put in place in contemplation thereof and do
not extend to any property or assets other than those of the Person
acquired by, or merged into or consolidated with, the Company or any
Restricted Subsidiary of the Company;
(4) Liens on property or assets existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of
the Company, provided, that such Liens were not put in place in
contemplation thereof and only extend to the property or assets so
acquired;
(5) Liens existing on the date of this Indenture;
(6) Liens to secure any Permitted Refinancing Indebtedness
incurred to refinance any Indebtedness secured by any Lien referred
to in the foregoing clauses (1) through (5), as the case may be, at
the time the original Lien became a Permitted Lien;
(7) Liens in favor of the Company or any Restricted
Subsidiary of the Company;
(8) Liens to secure Indebtedness permitted by clause (xvi)
of the second paragraph of Section 4.09 hereof;
(9) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $50 million in the aggregate at any
one time outstanding and that (a) are not incurred in connection with
the borrowing of money or the obtaining of advances or credit, other
than trade credit in the ordinary course of business, and (b) do not
in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the
Company or such Restricted Subsidiary;
(10) Liens incurred or deposits made to secure the
performance of statutory or regulatory obligations, bankers'
acceptances, surety or appeal bonds, performance bonds, deposits to
secure the performance of tenders, bids, trade contracts, government
contracts, import duties, payment of rent, performance, letters of
credit and return-of-money bonds, leases or licenses or other
obligations of a like nature incurred in the ordinary course of
business, including, without limitation, landlord Liens on leased
properties;
(11) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent, that are not subject to penalties
or interest for non-payment or that are being contested in good faith
by appropriate proceedings; provided, that any reserve or other
appropriate provision as shall be required to conform with GAAP shall
have been made therefor;
(12) Liens to secure Indebtedness, including Capital Lease
Obligations, permitted by clause (iv) of the second paragraph of
Section 4.09 hereof covering only the assets acquired with such
Indebtedness;
(13) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's, suppliers' or other like Liens arising in
the ordinary course of business and deposits made to obtain the
release of such liens and with respect of obligations not overdue for
a period in excess of 60 days or which are being contested in good
faith by appropriate proceedings; provided, that any reserve or other
appropriate provision as shall be required to conform with GAAP shall
have been made therefor;
(14) easements, rights-of-way, zoning ordinances and similar
charges, restrictions, exceptions or other irregularities,
reservations of, or rights of others for: licenses, sewers, electric
lines, telegraph and telephone lines, and other similar encumbrances
or title defects incurred, or leases or subleases granted to others,
in the ordinary course of business, which do not in any case
materially detract from the value of the property subject thereto or
do not materially interfere with the ordinary conduct of the business
of the Company and its Restricted Subsidiaries taken as a whole;
(15) Liens in favor of customs and revenue authorities to
secure payment of customs duties in connection with the importation
of goods in the ordinary course of business and other similar Liens
arising in the ordinary course of business;
(16) leases or subleases granted to third Persons not
materially interfering with the ordinary course of business of the
Company and its Restricted Subsidiaries taken as a whole;
(17) Liens, other than any Lien imposed by ERISA or any rule
or regulation promulgated thereunder, incurred or pledges or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social
security;
(18) deposits made in the ordinary course of business to
secure liability to insurance carriers;
(19) Liens for purchase money obligations, including
refinancings thereof permitted under Section 4.09 hereof, provided,
that (a) the Indebtedness secured by any such Lien is permitted under
Section 4.09 hereof and (b) any such Lien encumbers only the asset so
purchased;
(20) any attachment or judgment Lien not constituting an
Event of Default under clause (i) of Section 6.01 hereof and Liens
arising from the rendering of a judgment that is not a final judgment
or order against the Company or any Restricted Subsidiary with
respect to which the Company or such Restricted Subsidiary is then
proceeding with an appeal or other proceeding for review or in
connection with surety or appeal bonds in connection with such
attachment or judgment;
(21) any interest or title of a lessor or sublessor under
any operating lease or capital lease;
(22) Liens (A) on assets transferred to a Securitization
Entity or on assets of a Securitization Entity, in either case
incurred in connection with a Qualified Securitization Transaction or
(B) incurred pursuant to the Schmalbach Receivables Facility;
(23) Liens under licensing agreements for use of
intellectual property entered into in the ordinary course of
business;
(24) Liens arising from Uniform Commercial Code financing
statement filings regarding operating leases entered into by the
Company and its Restricted Subsidiaries in the ordinary course of
business; and
(25) Rights of set-off of banks and other Persons.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease
or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries, other than intercompany Indebtedness; provided, that:
(1) the principal amount, or accreted value, if applicable,
of such Permitted Refinancing Indebtedness does not exceed the
principal amount, or accreted value, if applicable, of the
Indebtedness extended, refinanced, renewed, replaced, defeased or
refunded, plus all accrued interest and premiums on the Indebtedness
and the amount of all fees, expenses, prepayment penalties and
premiums incurred in connection therewith;
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at least as
favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred either by the Company or
by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or any agency or political subdivision
thereof or any other entity.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Purchase Money Note" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Restricted Subsidiary of the Company in connection with a Qualified
Securitization Transaction, which note shall be repaid from cash available to
the Securitization Entity, other than amounts required to be established as
reserves pursuant to agreements, amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and amounts paid
in connection with the purchase of newly generated receivables.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Qualified Securitization Transaction" means any transaction or
series of transactions pursuant to which the Company or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer to (a) a Securitization
Entity, in the case of a transfer by the Company or any of its Restricted
Subsidiaries, and (b) any other Person, in case of a transfer by a
Securitization Entity, or may grant a security interest in, any receivables,
whether now existing or arising or acquired in the future, of the Company or
any of its Restricted Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such receivables, all contracts
and contract rights and all Guarantees or other obligations in respect of such
receivables, proceeds of such receivables and other assets, including contract
rights, which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving receivables, collectively, "transferred assets";
provided, that, in the case of any such transfer by the Company or any of its
Restricted Subsidiaries, the transferor receives cash or Purchase Money Notes
in an amount which, when aggregated with the cash and Purchase Money Notes
received by the Company and its Restricted Subsidiaries upon all other such
transfers of transferred assets during the 90 days preceding such transfer, is
at least equal to 75% of the aggregate face amount of all receivables so
transferred during such day and the 90 preceding days.
"Registration Rights Agreement" means the Registration Rights
Agreement with respect to the Notes, dated as of December 19, 2002, by and
among the Company and the other parties named on the signature pages thereof,
as such agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global Note
substantially in the form of Exhibit A hereto bearing the Global Note Legend
and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global Note
substantially in the form of Exhibit A hereto bearing the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes initially sold in reliance on Rule 903 of
Regulation S.
"Responsible Officer" when used with respect to the Trustee, means
any officer within the corporate trust department of the Trustee, including
any vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary; provided, that, on the
date of this Indenture, all Subsidiaries of the Company other than Ball Asia
Pacific, Ball Capital Corp. and the Excluded Subsidiaries shall be Restricted
Subsidiaries of the Company.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"S&P" means Standard & Poor's Ratings Group.
"Schmalbach-Lubeca AG" means Schmalbach-Lubeca AG, and any and all
successors thereto, including, but not limited to Schmalbach-Lubeca GmbH.
"Schmalbach Receivables Facility" means the existing accounts
receivable securitization program of Schmalbach-Lubeca AG and its Subsidiaries
as amended, restated, modified, renewed, refunded, replaced, increased or
refinanced, in whole or in part, from time to time by one or more of
Schmalbach-Lubeca AG and its existing and future European subsidiaries, the
Company's European affiliates that are Restricted Subsidiaries and Ball
Capital Corp.; provided that, the principal or capital amount outstanding
under any such facility shall not exceed (euro)100 million in the aggregate.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Entity" means a Wholly-Owned Subsidiary of the
Company, or another Person in which the Company or any Restricted Subsidiary
of the Company makes an Investment and to which the Company or any Restricted
Subsidiary of the Company transfers receivables and related assets, that
engages in no activities other than in connection with the financing of
receivables and that is designated by the Board of the Directors of the
Company, as provided below, as a Securitization Entity (a) no portion of the
Indebtedness or any other Obligations, contingent or otherwise, of which (1)
is guaranteed by the Company or any Restricted Subsidiary of the Company,
other than the Securitization Entity, other than pursuant to Standard
Securitization Undertakings or Limited Originator Recourse, (2) is recourse to
or obligates the Company or any Restricted Subsidiary of the Company, other
than the Securitization Entity, in any way other than pursuant to Standard
Securitization Undertakings or Limited Originator Recourse or (3) subjects any
property or asset of the Company or any Restricted Subsidiary of the Company,
other than the Securitization Entity, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings or Limited Originator Recourse, (b) with which
neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on terms
no less favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons that are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing receivables of such entity and (c) to which neither
the Company nor any Restricted Subsidiary of the Company has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Any such designation by the Board
of Directors of the Company shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the resolution of the Board of Directors of
the Company giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"Series A Notes" means the $300.0 million of 6?% Senior Notes due
2012 issued hereunder.
"Series B Notes" means the notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company that are reasonably customary in receivables
securitization transactions.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled, without regard to the occurrence of any contingency,
to vote in the election of directors, managers or trustees thereof is
at the time owned or controlled, directly or indirectly, by such
Person; and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or an entity
described in clause (1) and related to such Person or (b) the only
general partners of which are such Person or one or more entities
described in clause (1) and related to such Person, or any
combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
GAAP, as shown on the most recently available consolidated balance sheet of
the Company and its Restricted Subsidiaries.
"Transactions" means the Acquisition, the offering of the Initial
Notes, the repayment of approximately $389 million of certain existing debt of
the Company, the borrowings under the New Credit Facilities on the date of
this Indenture, the Company's consent solicitation completed on December 3,
2002 and the payment of related fees and expenses.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the Global
Note Legend and that has the "Schedule of Exchanges of Interests in the Global
Note" attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes that
do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (a) each of Ball Asia Pacific, Ball
Capital Corp., and the Excluded Subsidiaries and (b) any Subsidiary of the
Company that is designated by the Board of Directors of the Company as an
Unrestricted Subsidiary pursuant to a board resolution, but only to the extent
that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement
or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time
from Persons who are not Affiliates of the Company;
(3) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's net worth; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries; provided, however, that the Company and
its Restricted Subsidiaries may guarantee the performance of
Unrestricted Subsidiaries in the ordinary course of business except
for guarantees of Obligations in respect of borrowed money.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the board resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.07 hereof. If, at any
time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
the Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such Section 4.09. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only
be permitted if (1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment
at final maturity, in respect of the Indebtedness, by (b) the number
of years, calculated to the nearest one-twelfth, that will elapse
between such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Wholly-owned Subsidiary" means a Restricted Subsidiary, 100% of the
outstanding Capital Stock and other Equity Interests of which are directly or
indirectly owned by the Company.
Section 1.02 Other Definitions.
Defined in
Term Section
"Affiliate Transaction"......................................... 4.11
"Asset Sale Offer".............................................. 4.10
"Authentication Order".......................................... 2.02
"Calculation Date".............................................. 1.01
"Change of Control Offer"....................................... 4.15
"Change of Control Payment...................................... 4.15
"Change of Control Payment Date"................................ 4.15
"Covenant Defeasance"........................................... 8.03
"DTC"........................................................... 2.03
"Event of Default".............................................. 6.01
"Excess Proceeds"............................................... 4.10
"Incur"......................................................... 4.09
"Investment Grade Ratings"...................................... 4.21
"Legal Defeasance".............................................. 8.02
"Offer Amount".................................................. 3.09
"Offer Period".................................................. 3.09
"Other Indebtedness"............................................ 4.16
"Paying Agent".................................................. 2.03
"Payment Default"............................................... 6.01
"Permitted Debt"................................................ 4.09
"Purchase Date"................................................. 3.09
"Rating Agencies"............................................... 4.19
"Registrar"..................................................... 2.03
"Restricted Payments"........................................... 4.07
"Suspended Covenants"........................................... 4.21
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Guarantees means the Company and the
Guarantors, respectively, and any successor obligor upon the Notes and the
Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE SENIOR NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions
of this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibit A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Notes issued in definitive form shall be substantially in
the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Note
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be deposited on behalf of the purchasers of
the Notes represented thereby with the Trustee, at its New York office, as
custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on
behalf of Euroclear or Clearstream, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Restricted Period
shall be terminated upon the receipt by the Trustee of (i) a written
certificate from the Depositary, together with copies of certificates from
Euroclear and Clearstream certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest
in a 144A Global Note or an IAI Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(b) hereof), and (ii) an Officers'
Certificate from the Company. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Note shall
be exchanged for beneficial interests in Regulation S Permanent Global Notes
pursuant to the Applicable Procedures. Simultaneously with the authentication
of Regulation S Permanent Global Notes, the Trustee shall cancel the
Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be,
in connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions
of Clearstream Bank" and "Customer Handbook" of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes that are held by
Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
One Officer shall sign the Notes for the Company and the Guarantees
for the Guarantors by manual or facsimile signature. If an Officer whose
signature is on a Note and/or a Guarantee no longer holds that office at the
time such Note and/or Guarantee is authenticated, such Note and/or Guarantee
shall nevertheless be valid.
A Note and/or a Guarantee shall not be valid until authenticated by
the manual signature of the Trustee. The signature shall be conclusive
evidence that the Note or Guarantee, as applicable, has been authenticated
under this Indenture.
The Trustee shall, upon a written order of the Company signed by one
Officer (an "Authentication Order"), authenticate Notes and Guarantees for
original issue in accordance with this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
and Guarantees whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes,
and shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying
Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes shall be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such
notice from the Depositary; or
(2) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to
(x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Sections 2.06(b), (c) or
(f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (1) or (2) below, as applicable, as well
as one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Temporary
Regulation S Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:
(A) (i) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited
with such increase; or
(B) (i) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged; and
(ii) instructions given by the Depositary
to the Registrar containing information regarding
the Person in whose name such Definitive Note shall
be registered to effect the transfer or exchange
referred to in (1) above; provided that in no event
shall Definitive Notes be issued upon the transfer
or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (x) the
expiration of the Restricted Period and (y) the
receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities
Act. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(2) shall
be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of
such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in
Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of
a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(2) above
and the Registrar receives the following:
(A) (if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Temporary
Global Note or the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof;
and
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with
the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal or via the Depositary's
book-entry system that it is not (i) a broker-dealer, (ii) a
Person participating in the distribution of the Series B
Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit
C hereto, including the certifications in item
(1)(a) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act
and state "blue sky" laws and that the restrictions
on transfer contained herein and in the Private
Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest
in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest
in the Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery thereof in the
form of a Definitive Note prior to (x) the expiration of the Restricted Period
and (y) the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.
(2) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a broker-dealer, (ii) a
Person participating in the distribution of the Series B
Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement
Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act and
state "blue sky" laws and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth
in Section 2.06(b)(3) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(3) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt
by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case
of clause (A) above, the appropriate Restricted Global Note, in the
case of clause (B) above, the 144A Global Note, in the case of clause
(c) above, the Regulation S Global Note, and in all other cases, the
IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Series B Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item
(1)(c) thereof; or
(ii) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and state "blue sky" laws and that the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee shall cancel
the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of
a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Series B Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes
for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d)
thereof; or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this
subparagraph (D), if the Registrar so requests, an
Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such exchange or
transfer is in compliance with the Securities Act
and state "blue sky" laws and that the restrictions
on transfer contained herein and in the Private
Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder
thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that
(A) they are not broker-dealers, (B) they are not participating in a
distribution of the Series B Notes and (C) they are not affiliates
(as defined in Rule 144) of the Company, and accepted for exchange in
the Exchange Offer; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of
Definitive Notes so accepted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE
UNITED STATES."
(B) Notwithstanding the foregoing, any Global Note
or Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or
(f) to this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) shall not bear the Private
Placement Legend.
(2) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SENIOR NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE SENIOR NOTE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC") TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note
or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(2) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other
than any such transfer taxes or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09,
4.10, 4.15 and 9.05 hereof).
(3) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(5) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period of
15 days before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the next
succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected
by notice to the contrary.
(7) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section
2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by
the Company, or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall return such canceled Notes to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each
Note and the date of the proposed payment. The Company shall fix or cause to
be fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed
to Holders a notice that states the special record date, the related payment
date and the amount of such interest to be paid.
Section 2.13 CUSIP Number.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any
defect in or the omission of such numbers. The Company shall promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notice to Trustee.
If the Company elects to redeem Notes pursuant to the redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which
the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed, (iv) the redemption price and (v) the CUSIP
numbers of the Notes to be redeemed.
Section 3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes (a) in compliance with
the requirements of the principal national securities exchange, if any, on
which the Notes are listed or, (b) if the Notes are not so listed, on a pro
rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof and pursuant to a
defeasance of the Notes or a satisfaction and discharge of the Indenture, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed, including the
CUSIP numbers, and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued in
the name of the Holder of such Notes upon cancellation of the
original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess
of the amounts necessary to pay the redemption price of, and accrued interest
on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Note was registered at the close of business on
such record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
No Notes of $1,000 or less can be redeemed in part.
Section 3.07 Optional Redemption.
At any time prior to December 15, 2005, the Company may, on any one
or more occasions, redeem, in whole or in part, up to 35% of the aggregate
principal amount of the Notes, including Additional Notes, if any, issued
under this Indenture at a redemption price of 106.875% of the principal amount
of the Notes redeemed, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the redemption date, with the net cash proceeds of
one or more Equity Offerings; provided, that:
(1) at least 65% of the aggregate principal amount of the
Notes, including Additional Notes, if any, issued under this
Indenture remains outstanding immediately after the occurrence of
such redemption, excluding Notes held by the Company and its
Subsidiaries; and
(2) the redemption occurs within 90 days of the date of the
closing of such Equity Offering.
Except pursuant to the preceding paragraph, the Notes will not be
redeemable at the Company's option prior to December 15, 2007.
On or after December 15, 2007, the Company, at its option, may redeem
all or a part of the Notes upon not less than 30 nor more than 60 days'
notice, at the redemption prices, expressed as percentages of principal
amount, set forth below, plus accrued and unpaid interest and Liquidated
Damages, if any, on the Notes redeemed, to the applicable redemption date, if
redeemed during the twelve-month period beginning on December 15 of the years
indicated below:
Year Percentage
2007................................................................103.438%
2008................................................................102.292%
2009................................................................101.146%
2010 and thereafter................................................ 100.000%
Section 3.08 Mandatory Redemption.
Other than as specifically provided in Sections 3.09, 4.10 or 4.15
hereof, the Company shall not be required to make any mandatory redemption or
sinking fund payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall
be required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later
than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes and
such other pari passu Indebtedness required to be purchased pursuant to
Section 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has
been tendered, all Notes and such other pari passu Indebtedness tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer
shall be made to all Holders and all holders of other Indebtedness that is
pari passu with the Notes containing similar provisions to those set forth in
this Indenture with respect to offers to purchase or redeem with the proceeds
of sales of assets. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(4) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant
to an Asset Sale Offer may only elect to have all of such Note
purchased and may not elect to have only a portion of such Note
purchased;
(6) that Holders electing to have a Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, or transfer by book-entry transfer, to the
Company, a depositary, if appointed by the Company, or a Paying Agent
at the address specified in the notice at least three days before the
Purchase Date;
(7) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as the
case may be, receives, not later than the expiration of the Offer
Period, a telegram, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and
other pari passu Indebtedness surrendered by Holders exceeds the
Offer Amount, the Company shall select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and other pari passu Indebtedness
surrendered (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(9) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not
later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered
by such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder,
in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company or a Guarantor shall pay or cause to be paid the
principal of, premium, if any, and interest and Liquidated Damages, if any, on
the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest and Liquidated Damages, if any, shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest and
Liquidated Damages, if any, then due. The Company shall pay all Liquidated
Damages, if any, in the same manner on the dates and in the amounts set forth
in the Registration Rights Agreement.
The Company or a Guarantor shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the then applicable interest rate on the Notes
to the extent lawful; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Administration Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.03 Reports.
(a) Whether or not the Company is required by the SEC, so long as any
Notes are outstanding, the Company shall furnish to the Holders of Notes
within the time periods specified in the SEC's rules and regulations:
(1) all quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms
10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual
information only, a report on the annual financial statements by the
Company's independent public accountants (which shall be firm(s) of
established national reputation); and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports.
In addition, whether or not required by the rules and regulations of the SEC,
the Company shall file a copy of all such information and reports referred to
in clauses (1) and (2) above with the SEC for public availability within the
time periods specified in the SEC's rules and regulations, unless the SEC will
not accept such a filing, and make such information available to securities
analysts and prospective investors upon request. The Company shall at all
times comply with TIA Section 314(a). 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).
(b) For so long as any Notes remain outstanding, the Company and the
Guarantors shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions
of this Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by
a written statement of the Company's independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, as soon as possible, but in no event later than five
days after any Officer becoming aware of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.05 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Company and each of the Guarantors (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07 Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's Equity Interests, including, without
limitation, any payment in connection with any merger or consolidation
involving the Company, or to the direct or indirect holders of the Company's
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests, other than Disqualified Stock, of
the Company);
(ii) purchase, redeem or otherwise acquire or retire for value,
including, without limitation, in connection with any merger or consolidation
involving the Company, any Equity Interests of the Company;
(iii) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes or the Guarantees, except a payment of interest or
principal at Stated Maturity of such Indebtedness; or
(iv) make any Restricted Investment;
(all such payments and other actions set forth in clauses (i) through (iv)
above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence of such Restricted Payment; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of Section
4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company or any of its Restricted
Subsidiaries after August 10, 1998, excluding Restricted Payments permitted by
clauses (ii), (iii), (iv) and (vi) of the next succeeding paragraph, is less
than the sum, without duplication, of:
(i) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of the first
fiscal quarter commencing August 10, 1998 to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment, or,
if such Consolidated Net Income for such period is a deficit, less
100% of such deficit, plus
(ii) 100% of the aggregate net cash proceeds or the fair market value
of property other than cash received by the Company since August 10,
1998 as a contribution to its common equity capital or from the issue
or sale of Equity Interests of the Company (other than Disqualified
Stock), or from the issue or sale of Disqualified Stock or debt
securities of the Company that have been converted into or exchanged
for such Equity Interests, other than Equity Interests, Disqualified
Stock or debt securities sold to a Restricted Subsidiary of the
Company, plus
(iii) to the extent not already included in Consolidated Net Income
of the Company for such period and without duplication, any
Restricted Investment that was made by the Company or any of its
Restricted Subsidiaries after August 10, 1998 is sold for cash or
otherwise liquidated or repaid for cash, or any Unrestricted
Subsidiary which is designated as an Unrestricted Subsidiary
subsequent to August 10, 1998 is sold for cash or otherwise
liquidated or repaid for cash, 100% of the cash return of capital
with respect to such Restricted Investment or Unrestricted
Subsidiary, less the cost of disposition, if any and 50% of the
excess of the fair market value of the Company's Investment in such
Unrestricted Subsidiary as of the date of such redesignation over the
amount of the Restricted Investment that reduced this clause (c);
provided, that any amounts that increase this clause (c) shall not
duplicatively increase amounts available as Permitted Investments.
The foregoing provisions shall not prohibit:
(i) the payment of any dividend within 60 days after the
date of declaration of the dividend, if at the date of declaration
the dividend payment would have complied with the provisions of this
Indenture;
(ii) the making of any Restricted Investment or the
redemption, repurchase, retirement, defeasance or other acquisition
of any subordinated Indebtedness of the Company or of any Restricted
Subsidiary of the Company or any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of the substantially
concurrent sale, other than to a Restricted Subsidiary of the
Company, of Equity Interests of the Company, other than Disqualified
Stock; provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from clause (c)
(ii) of the preceding paragraph;
(iii) the payment, purchase, defeasance, retirement
redemption, repurchase or other acquisition (a) of subordinated
Indebtedness of the Company or any Restricted Subsidiary of the
Company with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or (b) of any Disqualified Stock of the
Company in exchange for, or out of the net cash proceeds of the
substantially concurrent sale of, Disqualified Stock of the Company
that is not prohibited by the terms of this Indenture to be issued;
(iv) the payment of dividends on the Company's Common Stock
of up to a combined amount of $30.0 million per annum; provided that
up to $10.0 million of such amount that is not utilized by the
Company to pay dividends in any calendar year may be carried forward
to any subsequent year;
(v) (a) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company that are
held by any member of the Company's, or any of its Restricted
Subsidiaries', management pursuant to any management equity
subscription agreement or stock option agreement or (b) the
repurchase of Equity Interests of the Company or any Restricted
Subsidiary of the Company held by employee benefits plans, whether
directly or for employees, directors or former directors, pursuant to
the terms of agreements, other than management equity subscription
agreements or stock option agreements, approved by the Company's
Board of Directors; provided that, in the case of foregoing clause
(a) the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $25.0 million
in the aggregate since the date of this Indenture and, in the case of
foregoing clause (b), the aggregate purchase price paid for all such
repurchased Equity Interests shall not exceed $15.0 million in any
twelve-month period;
(vi) repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a
portion of the exercise price of such options;
(vii) the repurchase, redemption or other acquisition or
retirement for value of the Existing Subordinated Notes pursuant to
the provisions described under Section 3.07, 4.10 or 4.15 of the
Existing Subordinated Notes Indenture;
(viii) the distribution, as a dividend or otherwise, of
shares of Capital Stock of, or Indebtedness owed to Ball or a
Restricted Subsidiary of Ball by, Unrestricted Subsidiaries; and
(ix) other Restricted Payments in an aggregate amount since
the date of this Indenture not to exceed $100.0 million under this
clause (ix);
provided that, with respect to clauses (iv), (vii) and (ix) above, no Default
or Event of Default shall have occurred and be continuing immediately after
such transaction or as a consequence thereof.
The amount of all Restricted Payments, other than cash, shall be the
fair market value on the date of the Restricted Payment of the assets or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be
valued by this Section 4.07 shall be determined by the Board of Directors of
the Company whose resolution with respect thereto shall be delivered to the
Trustee.
If any Restricted Investment is sold or otherwise liquidated or
repaid or any dividend or payment is received by the Company or a Restricted
Subsidiary of the Company and such amounts may be credited to clause (c)
above, then such amounts shall be credited only to the extent of amounts not
otherwise included in Consolidated Net Income and that do not otherwise
increase the amount available as a Permitted Investment.
Section 4.08 Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Capital
Stock to the Company or any of its Restricted Subsidiaries, or with respect to
any other interest or participation in, or measured by, its profits, or pay
any Indebtedness owed to the Company or any of its Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(c) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
However, the preceding restrictions do not apply to such encumbrances
or restrictions existing under or by reason of
(a) agreements governing Existing Indebtedness as in effect on the
date of this Indenture;
(b) other encumbrances and restrictions in effect on the date of this
Indenture;
(c) any Credit Facilities, including the New Credit Facilities, as in
effect on the date of this Indenture, and any extensions, amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof and other Credit Facilities not
prohibited under this Indenture, provided that such extensions, amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings and other Credit Facilities are not materially
more restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in the New Credit Facilities as in
effect on the date of this Indenture;
(d) the several indentures governing the Notes and the Existing
Notes, the Notes, the Existing Notes and the related subsidiary guarantees;
(e) applicable law or any applicable rule, regulation or order;
(f) existing with respect to any Person or the property or assets of
such person acquired by the Company or any of its Restricted Subsidiaries as
in effect at the time of such acquisition, and not incurred in connection with
or in contemplation of such acquisition, which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so acquired,
provided, that in the case of Indebtedness, such Indebtedness was permitted by
the terms of this Indenture to be incurred;
(g) customary non-assignment provisions in leases or other contracts
entered into in the ordinary course of business;
(h) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on that property of the nature
described in clause (c) of the preceding paragraph;
(i) Indebtedness of Restricted Subsidiaries; provided that such
Indebtedness was not prohibited under this Indenture;
(j) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being refinanced;
(k) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 4.12 hereof that limit the right of the debtor
to dispose of the assets subject to such Liens;
(l) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements, stock
sale agreements and other similar agreements entered into in the ordinary
course of business;
(m) any Purchase Money Note, or other Indebtedness or other
contractual requirements of a Securitization Entity in connection with a
Qualified Securitization Transaction; provided that such restrictions may
apply only to such Securitization Entity;
(n) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition;
(o) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business; and
(p) any encumbrance or restriction of the type referred to in clauses
(a) through (c) of the first paragraph of this Section 4.08 imposed by any
extension, amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing of an agreement, contract,
instrument or obligation referred to in clauses (a) through (o) above that is
not materially more restrictive, taken as a whole, than the encumbrance or
restriction imposed by the applicable predecessor agreement, contract,
instrument or obligation.
Section 4.09 Incurrence of Indebtedness and Issuance
of Disqualified and Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness, including
Acquired Debt, and the Company shall not issue any Disqualified Stock and
shall not permit any of its Restricted Subsidiaries to issue any shares of
preferred stock; provided, however, that the Company may incur Indebtedness,
including Acquired Debt, or issue shares of Disqualified Stock and any of the
Company's Restricted Subsidiaries may incur Indebtedness if the Company's
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred or such Disqualified Stock is issued would have been at least 2.0 to
1, determined on a pro forma basis, including a pro forma application of the
net proceeds therefrom, as if the additional Indebtedness had been incurred,
or the Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.
The provisions of the first paragraph of this Section 4.09 shall not
prohibit the incurrence of any of the following items of Indebtedness or the
issuance of preferred stock, as applicable (collectively, "Permitted Debt"):
(i) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness under Credit Facilities in an
aggregate principal amount at any one time outstanding under this
clause (i), with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and
its Restricted Subsidiaries thereunder, not to exceed $1,350 million
less the aggregate amount of all Net Proceeds of Asset Sales applied
by the Company or any of its Restricted Subsidiaries since the date
of this Indenture to repay any term Indebtedness under any Credit
Facility or to repay any revolving credit Indebtedness under any
Credit Facility and effect a corresponding commitment reduction
thereunder pursuant to Section 4.10 hereof;
(ii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the Guarantees to be issued
on the date of this Indenture and the Series B Notes and the
Guarantees to be issued pursuant to the Registration Rights
Agreement;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in
each case, incurred for the purpose of financing all or any part of
the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Company or
such Restricted Subsidiary, in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace Indebtedness incurred pursuant to this clause
(iv), not to exceed 7.5% of Total Assets at any time outstanding;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the
Company and any of its Restricted Subsidiaries; provided, however,
that
(i) if the Company or any Guarantor is the obligor
on such Indebtedness, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes, in the case of the
Company, or any such Guarantor's Guarantee, in the case of a
Guarantor; and
(ii) (a) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being
held by a Person other than the Company or a Restricted
Subsidiary of the Company and (b) any sale or other transfer
of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary of the Company shall be
deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary,
as the case may be, that was not permitted by this clause
(vi);
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the normal
course of business and not for speculative purposes;
(viii) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness in the ordinary course of
business solely in respect of performance, surety, appeal and similar
bonds, completion or performance guarantees or standby letters of
credit issued for the purpose of supporting workers' compensation
liabilities of the Company or any of its Restricted Subsidiaries, to
the extent that such incurrence does not result in the incurrence of
any obligation for the payment of borrowed money to others;
(ix) the incurrence of Indebtedness arising from agreements
of the Company or a Restricted Subsidiary of the Company providing
for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary;
(x) the incurrence by a Restricted Subsidiary of the Company
of Indebtedness in connection with and in contemplation of, the
concurrent disposition of such Restricted Subsidiary to the
stockholders of the Company; provided that such disposition occurs
concurrently with such incurrence and following such disposition,
neither the Company nor any of its Restricted Subsidiaries has any
liability with respect to such Indebtedness;
(xi) the incurrence by a Securitization Entity of
Indebtedness in a Qualified Securitization Transaction that is
Non-Recourse Debt with respect to the Company and its Restricted
Subsidiaries (other than Securitization Entities), except for
Standard Securitization Undertakings and Limited Originator Recourse;
(xii) the guarantee by the Company or any Restricted
Subsidiary of Indebtedness of the Company or a Restricted Subsidiary
of the Company that was permitted to be incurred by another provision
of this Section 4.09;
(xiii) Indebtedness of the Company or a Restricted
Subsidiary owed to, including obligations in respect of letters of
credit for the benefit of, any Person in connection with workers'
compensation, health, disability or other employee benefits or
property, casualty or liability insurance provided by such Person to
the Company or a Restricted Subsidiary of the Company, pursuant to
reimbursement or indemnification obligations to such Person, in each
case incurred in the ordinary course of business;
(xiv) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business,
provided that such Indebtedness is extinguished within two business
days of its incurrence;
(xv) the issuance of shares of preferred stock by a
Restricted Subsidiary to the Company or another Restricted
Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such shares of preferred stock (except to
the Company or another Restricted Subsidiary) shall be deemed in each
case to be an issuance of such shares of preferred stock that was not
permitted by this clause (xv); and
(xvi) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount, or accreted value, as applicable, at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this
clause (xvi), not to exceed $150 million.
The Company shall not incur any Indebtedness (including Permitted
Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Company unless such Indebtedness is also contractually
subordinated in right of payment to the Notes on substantially identical
terms; provided, however, that no Indebtedness of the Company shall be deemed
to be contractually subordinated in right of payment to any other Indebtedness
of the Company solely by virtue of being unsecured.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt described in clauses (i) through (xvi)
above, or is entitled to be incurred pursuant to the first paragraph of this
Section 4.09, the Company, in its sole discretion, shall be permitted to
classify such item of Indebtedness on of the date of its incurrence, or later
reclassify such item of Indebtedness, in any manner that complies with this
Section 4.09 and such item of Indebtedness shall be treated as having been
incurred pursuant to only one of such clauses or pursuant to the first
paragraph of this Section 4.09.
The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or
an issuance of Disqualified Stock for purposes of this Section 4.09.
Indebtedness includes the Guarantee by the specified Person of (i) any
Indebtedness of any other Person or (ii) any liability of any other Person,
whether or not contingent and whether or not it appears on the balance sheet
of such Person, but only to the extent not otherwise included in determining
compliance with this Section 4.09.
Section 4.10 Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(i) the Company or the Restricted Subsidiary, as the case may be,
receives consideration at the time of the Asset Sale at least equal to the
fair market value of the assets or Equity Interests issued or sold or
otherwise disposed of;
(ii) the fair market value is determined by the Company's Board of
Directors and evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Trustee with respect to any Asset
Sale determined to have a fair market value greater than $25 million; and
(iii) at least 75% of the consideration received in the Asset Sale by
the Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this provision, each of the following shall be
deemed to be cash:
(w) any liabilities, as shown on the Company's or such
Restricted Subsidiary's most recent consolidated balance sheet, of
the Company or any Restricted Subsidiary, other than contingent
liabilities and liabilities that are by their terms subordinated to
the Notes or any Guarantee thereof, that are assumed by the
transferee of any such assets pursuant to a customary novation
agreement that releases the Company or such Restricted Subsidiary
from further liability;
(x) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee
that are converted by the Company or such Restricted Subsidiary into
cash within 180 days after the consummation of such Asset Sale, to
the extent of the cash received in that conversion;
(y) any Designated Noncash Consideration received by the
Company or any of its Restricted Subsidiaries in such Asset Sale;
provided that the aggregate fair market value, as determined above,
of such Designated Noncash Consideration, taken together with the
fair market value at the time of receipt of all other Designated
Noncash Consideration received pursuant to this clause (y) less the
amount of Net Proceeds previously realized in cash from prior
Designated Noncash Consideration is less than 7.5% of Total Assets at
the time of the receipt of such Designated Noncash Consideration,
with the fair market value of each item of Designated Noncash
Consideration being measured at the time received and without giving
effect to subsequent changes in value; and
(z) Additional Assets received in an exchange-of-assets
transaction;
provided, that this clause (iii) shall not be applicable to any sale
or other disposition of all or a portion of the business constituting the
aerospace and technologies segment of the Company.
Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may, at its option and to the extent the Company elects,
apply those Net Proceeds:
(a) to repay Indebtedness and other Obligations under any Credit
Facility, and, if the Indebtedness repaid is revolving credit Indebtedness, to
correspondingly permanently reduce commitments with respect thereto;
(b) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Businesses;
(c) to make a capital expenditure in a Permitted Business;
(d) to acquire other long-term assets in a Permitted Business; or
(e) to make an Investment in Additional Assets; provided, that the
Company shall be deemed to have complied with this clause (e) if, within 365
days of such Asset Sale, the Company shall have entered into a definitive
agreement covering such Investment which is thereafter completed within 365
days after the first anniversary of such Asset Sale.
Pending the final application of any Net Proceeds, the Company may
temporarily reduce Indebtedness or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the second preceding paragraph shall constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall make an offer to all Holders of Notes and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar
to those set forth in this Indenture with respect to offers to purchase or
redeem with the proceeds of sales of assets (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer shall be equal to 100% of the principal amount plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use those Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into such
Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a
pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
Section 4.11 Transactions With Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by
the Company or such Restricted Subsidiary with an unrelated Person;
and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with clause (1) above and that such Affiliate
Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the
Company; and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $50 million, an opinion as to the
fairness to the Company of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal
or investment banking firm of national standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of Section
4.11(a) hereof:
(1) any employment, severance or termination agreement
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions between or among the Company and/or its
Restricted Subsidiaries with Ball Asia Pacific and Permitted Joint
Ventures on terms that are no less favorable to the Company and/or
such Subsidiary than those that would have been obtained in a
comparable transaction by the Company and/or such Subsidiary with an
unrelated Person;
(4) any sale or other issuance of Equity Interests, other
than Disqualified Stock, to Affiliates of the Company;
(5) Restricted Payments that are permitted by and
Investments that are not prohibited by Section 4.07 hereof;
(6) advances to employees for moving, entertainment and
travel expenses, drawing accounts and similar expenditures in the
ordinary course of business;
(7) fees and compensation paid to, and indemnity provided on
behalf of, officers, directors or employees of the Company or any of
its Restricted Subsidiaries, as determined by the Board of Directors
of the Company or of any such Restricted Subsidiary, to the extent
such fees and compensation are reasonable and customary;
(8) transactions effected as part of a Qualified
Securitization Transaction;
(9) the grant of stock options or similar rights to
officers, employees, consultants and directors of the Company and, to
the extent otherwise permitted under this Indenture, to any
Restricted Subsidiary, pursuant to plans approved by the Board of
Directors of the Company and issuance of securities pursuant thereto;
and
(10) transactions pursuant to any arrangement, contract or
agreement in existence on the date of this Indenture, as such
arrangement may be amended or restated, renewed, extended,
refinanced, refunded or replaced from time to time, provided that any
such amendment or restatement, renewal, extension, refinancing,
refund or replacement is on terms and conditions not materially less
favorable to the Company or its Restricted Subsidiaries taken as a
whole than the arrangement, contract or agreement in existence on the
date of this Indenture.
Section 4.12 Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Lien of any kind
securing Indebtedness, Attributable Debt, or trade payables, other than
Permitted Liens, upon any of their property or assets, now owned or hereafter
acquired, unless all payments due under this Indenture and the Notes are
secured on an equal and ratable basis with the obligations so secured until
such time as such obligations are no longer secured by a Lien.
Section 4.13 Business Activities.
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries
taken as a whole.
Section 4.14 Corporate Existence.
Subject to Articles 5 and 10 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Restricted Subsidiaries and any Unrestricted Subsidiary with $20
million of net sales in the most recent twelve month period or assets of $20
million, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company, any Restricted
Subsidiary or any Unrestricted Subsidiary with $20 million of net sales in the
most recent twelve month period or assets of $20 million and (ii) the rights
(charter and statutory), licenses and franchises of the Company, its
Restricted Subsidiaries and any Unrestricted Subsidiary with $20 million of
net sales in the most recent twelve month period or assets of $20 million;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence
of any of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders of the Notes.
Section 4.15 Offer to Purchase Upon Change of Control.
(a) If a Change of Control occurs, and the Company does not redeem
the Notes as described in Section 3.07 hereof within 60 days after the Change
of Control, each Holder of Notes shall have the right to require the Company
to repurchase all or any part, equal to $1,000 or an integral multiple of
$1,000, of that Holder's Notes pursuant to the offer described below (the
"Change of Control Offer") at an offer price in cash equal to 101% of the
aggregate principal amount of the Notes repurchased plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase (the "Change
of Control Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"), pursuant to the procedures required by
this Indenture and described in such notice. The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of this Indenture,
the Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under the Change of
Control provisions of this Indenture by virtue of such conflict.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful,
(1) accept for payment all Notes or portions of the Notes
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of the
Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the
Notes properly accepted together with an Officers' Certificate
stating the aggregate principal amount of Notes or portions of the
Notes being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail, or cause to be transferred by book entry, to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each new Note shall be in a
principal amount of $1,000 or an integral multiple of $1,000. The Company will
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The provisions described above that require the Company to make a
Change of Control Offer following a Change of Control shall be applicable
whether or not any other provisions of this Indenture are applicable. Except
as described above with respect to a Change of Control, this Indenture does
not contain provisions that permit the Holders of the Notes to require that
the Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.
(c) Notwithstanding anything to the contrary in this Section 4.15,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes properly tendered and not withdrawn under the
Change of Control Offer.
Section 4.16 Additional Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary after the date of this Indenture, then
that newly acquired or created Domestic Subsidiary shall become a Guarantor
and execute and deliver a supplemental indenture to the Trustee in the form of
Exhibit F within 20 business days of the date on which it was acquired or
created; provided, that this Section 4.16 does not apply to any Subsidiary
that has properly been designated as an Unrestricted Subsidiary in accordance
with this Indenture for so long as it continues to constitute an Unrestricted
Subsidiary or to any Excluded Subsidiary for so long as it continues to
constitute an Excluded Subsidiary.
Section 4.17 Payment for Consents.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid and is paid to all Holders of the Notes that consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
Section 4.18 Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Company or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
(i) the Company or such Restricted Subsidiary, as applicable, could
have incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction pursuant to Section 4.09
hereof;
(ii) the gross cash proceeds of such sale and leaseback transaction
are at least equal to the fair market value, as determined in good faith by
the Board of Directors and set forth in an Officers' Certificate delivered to
the Trustee, of the property that is the subject of that sale and leaseback
transaction; and
(iii) the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
Section 4.19 No Amendment to Subordination Provisions.
The Company shall not amend, modify or alter the Existing
Subordinated Note Indenture in any way to amend the provisions of Article 10
of the Existing Subordinated Note Indenture (which relate to subordination).
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the
Company and its Restricted Subsidiaries in the Subsidiary properly designated
shall be deemed to be an Investment made as of the time of the designation and
shall reduce the amount available for Restricted Payments under the first
paragraph of Section 4.07 hereof or Permitted Investments, as determined by
the Company. That designation shall only be permitted if the Investment would
be permitted at that time and if the Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary. The Board of Directors may at any
time redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if
the redesignation would not cause a Default.
Section 4.21 Certain Covenants to Be Suspended Under Certain Conditions.
The covenants set forth in Section 4.01 through Section 4.20,
inclusive, of this Indenture shall be applicable to the Company (and/or its
Restricted Subsidiaries, as appropriate) except that during any period of time
that (i) the ratings assigned to the Notes by both Standard & Poor's Ratings
Group ("S&P") and Moody's Investors Service, Inc. ("Moody's" and, together
with S&P, the "Rating Agencies") are equal to or higher than BBB- and Baa3, or
the equivalents thereof, respectively (the "Investment Grade Ratings"), and
(ii) no Default or Event of Default shall have occurred and be continuing,
then beginning on that day and continuing at all times thereafter regardless
of any subsequent changes in the rating of the Notes, the Company and its
Subsidiaries shall not be subject to the provisions of this Indenture
described in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.20 and clause (iv) of
Section 5.01, (collectively, the "Suspended Covenants").
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets.
The Company shall not, directly or indirectly: (1) consolidate or
merge with or into another person, whether or not the Company is the surviving
corporation, or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries, taken as a whole, in one or more related
transactions, to another Person unless:
(i) either: (a) the Company is the surviving corporation; or (b) the
Person formed by or surviving any such consolidation or merger, if other than
the Company, or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state of the United States or the District
of Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger, if other than the Company, or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been made
assumes all the obligations of the Company under the Registration Rights
Agreement, the Notes and this Indenture pursuant to agreements reasonably
satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) either:
(a) except in the case of a merger of the Company with or
into a Subsidiary, the Company or the Person formed by or surviving
any such consolidation or merger, if other than the Company, or to
which such sale, assignment, transfer, conveyance or other
disposition shall have been made will on the date of such transaction
after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00
of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.09 hereof or
(b) the Fixed Charge Coverage Ratio for the Company or the
Person formed by or surviving any such consolidation or merger, if
other than the Company, or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made would,
immediately after giving pro forma effect thereto and any related
financing transactions as if same had occurred at the beginning of
the applicable four-quarter period, not be less than such Fixed
Charge Coverage Ratio for the Company and its Restricted Subsidiaries
immediately prior to such transaction,
provided, however, that clause (iv) 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 purpose of such transactions is
to change the state of incorporation of the Company. The Company may not,
directly or indirectly, lease all or substantially all of the properties or
assets of the Company and its Restricted Subsidiaries, taken as a whole, in
one or more related transactions, to any other Person. The provisions of this
Section 5.01 shall not apply to a sale, assignment, transfer, conveyance or
other disposition of assets between or among the Company and its Restricted
Subsidiaries.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the
case of a sale of all of the Company's assets that meets the requirements of
Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults for 30 days in the payment when due of
interest on, or Liquidated Damages, if any, with respect to, the Notes;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Notes;
(c) the Company or any of its Restricted Subsidiaries fails to comply
with the provisions of Section 5.01 hereof;
(d) the Company or any of its Restricted Subsidiaries fails for 30
days after notice to comply with the provisions of Sections 4.07, 4.09, 4.10
or 4.15 hereof;
(e) the Company or any of its Restricted Subsidiaries fails for 60
days after notice to comply with any of the other agreements in this Indenture
or the Notes;
(f) the Company or any of its Restricted Subsidiaries (other than a
Securitization Entity) defaults under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (other than a Securitization Entity) (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries (other than a
Securitization Entity)) whether such Indebtedness or guarantee now exists, or
is created after the date of this Indenture, if that default:
(1) is caused by a failure to pay principal of or premium,
if any, or interest on such Indebtedness on or before the expiration
of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default"); or
(2) results in the acceleration of such Indebtedness prior
to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there has
been a Payment Default or the maturity of which has been so accelerated,
aggregates $50 million or more or its foreign currency equivalent;
(g) the Company or any of its Restricted Subsidiaries fails to pay
final judgments aggregating in excess of $50 million or its foreign currency
equivalent, excluding amounts covered by insurance, which judgments are not
paid, discharged or stayed for a period of 60 days;
(h) the Company or any of its Significant Subsidiaries that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary pursuant to or within the
meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or substantially all
of the property of the Company or any of its Significant Subsidiaries
that are Restricted Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days; or
(j) except as permitted by this Indenture, any Guarantee shall be
held in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its obligations
under its Guarantee.
Section 6.02 Acceleration.
If any Event of Default (other than an Event of Default specified in
clause (h) or (i) of Section 6.01 hereof) with respect to the Company, any
Significant Subsidiary that is a Restricted Subsidiary, as applicable, or any
group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately. Upon any such declaration, the
Notes shall become due and payable immediately. Notwithstanding the foregoing,
if an Event of Default specified in clause (h) or (i) of Section 6.01 hereof
occurs with respect to the Company, any of its Significant Subsidiaries that
are Restricted Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary, all outstanding
Notes shall be due and payable without further action or notice. Holders of
the Notes may not enforce this Indenture or the Notes except as provided in
this Indenture.
In the case of any Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of this Indenture, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with this Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Liquidated Damages, if any, on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under this Indenture except a continuing Default or Event of
Default in the payment of interest or Liquidated Damages on, or the principal
of, the Notes (including in connection with an offer to purchase); provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration.
Upon any such waiver, such Default or Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 6.05 Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due
dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name
and as Trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any and interest, respectively;
and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers 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
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, but in the case of any such certificates of
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c), (e) and (f) of this Section and Section 7.02.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall
be sufficient if signed by an Officer of the Company or Guarantor issuing such
demand, request or notice.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with such
request or direction.
(g) Whenever in the administration of this Indenture, the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers' Certificate.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a Default or Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Notes and this
Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person as so authorized in any such
certificate previously delivered and not superseded.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event the Trustee acquires any conflicting interest
it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Trustee or resign. Any Agent may exercise the same
rights, with the same duties, as the Trustee under this Section 7.03. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall
mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default
relating to the payment of principal of or interest on, or Liquidated Damages
on, any Note, the Trustee may withhold the notice from Holders of the Notes if
and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each August 1 beginning with the August 1
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange or delisted therefrom.
Section 7.07 Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee from time to
time such reasonable compensation as agreed upon in writing for its acceptance
of this Indenture and services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company and the Guarantors shall reimburse the Trustee promptly upon request
for all reasonable disbursements, advances and expenses incurred or made by it
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company and the Guarantors shall indemnify the Trustee against
any and all losses, liabilities, claims, damages or expenses (including taxes
other than taxes based upon the income of the Trustee) incurred by it arising
out of or in connection with the acceptance or administration of its duties
under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company and
the Guarantors or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense may be attributable
to its negligence or willful misconduct. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee
to so notify the Company shall not relieve the Company and the Guarantors of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Company and the Guarantors under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's and the Guarantors' payment obligations in
this Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of
a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee (including its agents and/or counsel) hereunder
have been paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
Trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
Section 7.12 Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the
date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or
omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to the taking of such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
deemed to have been discharged from its obligations with respect to all
outstanding Notes and to have each Guarantor's obligation discharged with
respect to its Guarantee on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, interest on and Liquidated Damages, if any, on
such Notes when such payments are due, (b) the Company's obligations with
respect to the Notes under Article 2 and Section 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the
Company's and the Guarantors' obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each Restricted Subsidiary
shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from their obligations under the covenants contained in
Sections 3.09, 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16,
4.17 and 4.20 and clause (iv) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section
8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding
Notes, the Company, each Guarantor and each Restricted Subsidiary may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 6.01 hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(d) through 6.01(f)
hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, interest and premium and Liquidated Damages, if any,
on the outstanding Notes on the stated maturity or on the applicable
redemption date, as the case may be, and the Company must specify whether the
Notes are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that (A) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling or (B)
since the date of this Indenture, there has been a change in the applicable
U.S. federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of such Covenant Defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this Article 8
concurrently with such incurrence, or insofar as Sections 6.01(h) or 6.01(i)
hereof is concerned, at any time in the period ending on the 91st day after
the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument, other than this Indenture, to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have
been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as Paying Agent) as
the Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash
or non-callable Government Securities deposited pursuant to Section 8.04
hereof or the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the
Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall
be paid to the Company on its request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the reasonable expense of the Company cause to be published
once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture, the
Guarantees or the Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of merger or consolidation or sale of all or
substantially all of the Company's assets;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights under this Indenture of any Holder of the Notes;
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(f) to provide for the issuance of Additional Notes in accordance
with the Indenture;
(g) to allow any Guarantor to execute a supplemental indenture and/or
a Guarantee with respect to the Notes;
(h) to evidence and provide for the acceptance of appointment by a
successor trustee;
(i) to add guarantees with respect to the Notes; or
(j) to secure the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company and
the Guarantors in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture (including
Sections 3.09, 4.10 and 4.15 hereof), the Guarantees and the Notes with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding voting as a single class, including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes, and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Guarantees
or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes, including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes. Section 2.08 hereof shall determine which Notes are
considered to be "outstanding" for purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental Indenture unless such amended or supplemental
Indenture directly affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance of the proposed amendment or waiver.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of
a majority in aggregate principal amount of the Notes then outstanding voting
as a single class may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Notes. However, without the
consent of each Holder affected, an amendment or waiver under this Section
9.02 may not, with respect to any Notes held by a non-consenting Holder:
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of the
Notes except as provided above with respect to Sections 3.09, 4.10 and 4.15
hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest or Liquidated Damages, if any, on the
Notes, except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such acceleration:
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of the Notes to receive
payments of principal of or premium, interest or Liquidated Damages, if any,
on the Notes;
(g) make any change in the foregoing amendment and waiver provisions;
or
(h) release any Guarantor from any of its Obligations under its
Guarantee or this Indenture, except in accordance with the terms of this
Indenture.
Section 9.03 Compliance With Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note
and every subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Holder's Note, even if notation of the consent is
not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended, restated or supplemental
Indenture authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Company may not sign an amendment or supplemental Indenture until
the Board of Directors approves it. In executing any amended, restated or
supplemental Indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01 hereof) shall be fully protected in relying upon, in addition
to the documents required by Section 12.04 hereof, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such amended, restated
or supplemental Indenture is authorized or permitted by this Indenture.
ARTICLE 10.
Note GUARANTEES
Section 10.01 Guarantee.
Subject to this Article 10, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of and interest on the Notes shall be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder shall be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same shall be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not
a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Guarantee shall not
be discharged except by complete performance of the obligations contained in
the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, Trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Guarantee. The Guarantors
shall have the right to seek contribution from any non-paying Guarantor so
long as the exercise of such right does not impair the rights of the Holders
under the Guarantee.
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee and this Article 10 shall be
limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that
are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under
this Article 10, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03 Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form
included in Exhibit E shall be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by an Officer.
Each Guarantor hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Indenture, if required by Section
4.16 hereof, the Company shall cause such Subsidiaries to execute supplemental
Indentures to this Indenture and Guarantees in accordance with Section 4.16
hereof and this Article 10, to the extent applicable.
Section 10.04 Guarantors May Consolidate, Etc. on Certain Terms.
A Guarantor may not sell or otherwise dispose of all or substantially
all of its assets to, or consolidate with or merge with or into, whether or
not such Guarantor is the surviving Person, another Person other than the
Company or another Guarantor, unless:
(a) immediately after giving effect to such transaction, no Default
or Event of Default exists; and
(b) either:
(1) the Person formed by or surviving any such consolidation
or merger, if other than the Guarantor or the Company,
unconditionally assumes all the obligations of such Guarantor under
this Indenture, its Guarantee and the Registration Rights Agreement,
pursuant to a supplemental Indenture in the form of Exhibit F hereto;
or
(2) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this
Indenture.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental Indenture,
executed and delivered to the Trustee and satisfactory in the form of Exhibit
F to the Trustee, of the Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Guarantor, such successor Person shall succeed to and
be substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Guarantees to be endorsed upon all of the Notes issuable
hereunder. All the Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 5 hereof, and notwithstanding clauses
(a) and (b) above, nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor. Upon any such consolidation or merger of any
Guarantor with or into another Guarantor or with or into the Company, the
Guarantee of the Guarantor that does not survive shall no longer be of any
force or effect.
Section 10.05 Releases Following Sale of Assets.
In the event of (a) any sale or other disposition of all or
substantially all of the assets of any Guarantor, including by way of merger,
consolidation or otherwise, to a Person that is not, either before or after
giving effect to such transaction, the Company or a Subsidiary of the Company,
if the sale or other disposition complies with Section 4.10 herein; (b) any
sale or other disposition of all of the Capital Stock of a Guarantor,
including by way of dividend of the Capital Stock of such Guarantor to the
stockholders of the Company, to a Person that is not, either before or after
giving effect to such transaction, the Company or a Subsidiary of the Company
if the sale or other disposition complies with Section 4.10 herein, or (c) if
the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with Section 4.20 of this Indenture,
then such Guarantor (in the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of the capital stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale
or other disposition of all or substantially all of the assets of such
Guarantor) shall be released and relieved of any obligations under its
Guarantee; provided that the Net Proceeds of such sale or other disposition
are applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.10 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Guarantee.
Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated (except
lost, stolen or destroyed Notes that have been replaced or
paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company)
have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by
reason of the mailing of a notice of redemption or otherwise
or will become due and payable within one year and the
Company or any Guarantor has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination of cash
in U.S. dollars and non-callable Government Securities, in
such amounts as will be sufficient without consideration of
any reinvestment of interest, to pay and discharge the
entire indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium and
Liquidated Damages, if any, and accrued interest to the date
of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of such deposit or will occur as a result of
such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or the redemption date, as the
case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion
of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control.
Section 12.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day
delivery, to the others' address.
If to the Company and/or any Guarantor:
Ball Corporation
10 Longs Peak Drive
Broomfield, Colorado 80021-2510
Telecopier No.: (303) 460-2691
Attention: Treasurer
With a copy to:
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606
Telecopier No.: (312) 407-0411
Attention: Brian W. Duwe
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 8 West
New York, NY 10286
Telecopier No.: (212) 815-5707
Attention: Corporate Trust Administration
The Company, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail postage prepaid, certified or registered mail, return receipt
requested, or by overnight air courier guaranteeing next day delivery to its
address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection
of TIA Section 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) except with respect to the initial issuance of the Notes, an
Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent
and covenants have been satisfied.
Section 12.05 Statements Required in Certificate.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 12.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 Calculation of Foreign Currency Amounts.
The calculation of the U.S. dollar equivalent amount for any amount
denominated in a foreign currency shall be the noon buying rate in the City of
New York as certified by the Federal Reserve Bank of New York on the date on
which such determination is required to be made or, if such day is not a day
on which such rate is published, the rate most recently published prior to
such day.
Section 12.08 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall have any
liability for any obligations of the Company or such Guarantor under the
Notes, the Guarantees, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Guarantees. The waiver may not be effective to waive liabilities under the
federal securities laws.
Section 12.09 Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.11 Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 12.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.14 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of December 19, 2002
BALL CORPORATION
By: /s/ David A. Westerlund
----------------------------------
Name: David A. Westerlund
Title: Senior Vice President,
Administration and
Corporate Secretary
BALL AEROSPACE & TECHNOLOGIES CORP.
By: /s/ David A. Westerlund
----------------------------------
Name: David A. Westerlund
Title: Vice President
BALL METAL BEVERAGE CONTAINER CORP.
By: /s/ David A. Westerlund
----------------------------------
Name: David A. Westerlund
Title: Vice President
BALL METAL FOOD CONTAINER CORP.
By: /s/ Scott C. Morrison
----------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL METAL PACKAGING SALES CORP.
By: /s/ Scott C. Morrison
---------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL PACKAGING CORP.
By: /s/ Scott C. Morrison
---------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL PLASTIC CONTAINER CORP.
By: /s/ Scott C. Morrison
---------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL TECHNOLOGIES HOLDING CORP.
By: /s/ Scott C. Morrison
---------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BG HOLDINGS I, INC.
By: /s/ Scott C. Morrison
-------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BG HOLDINGS II, INC.
By: /s/ Scott C. Morrison
-------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
EFRATOM HOLDING, INC.
By: /s/ Scott C. Morrison
-------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
LATAS DE ALUMINIO BALL, INC.
By: /s/ Scott C. Morrison
------------------------------
Name: Scott C. Morrison
Title: Vice President and Treasurer
BALL PAN-EUROPEAN HOLDINGS, INC.
By: /s/ Charles E. Baker
------------------------------
Name: Charles E. Baker
Title: Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ Van K. Brown
------------------------------
Name: Van K Brown
Title: Vice President
EXHIBIT A
(Face of Note)
- ------------------------------------------------------------------------------
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable
pursuant to the provisions of the Indenture]
CUSIP/CINS 058498AE6
6?% Senior Notes due 2012
No. ___ $_________
BALL CORPORATION
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of ________________________________________________________
Dollars on December 15, 2012.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
BALL CORPORATION
By:
---------------------------
Name:
Title:
This is one of the Global Notes
referred to in the within-
mentioned Indenture:
Dated: December ___, 2002
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------
Name:
Title:
(Back of Note)
6?% Senior Notes due 2012
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Ball Corporation, an Indiana corporation (the
"Company"), promises to pay interest on the principal amount of this
Note at 6?% per annum from December 19, 2002 until maturity and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5 of
the Registration Rights Agreement referred to below. The Company
shall pay interest and Liquidated Damages, if any, semi-annually on
June 15 and December 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; provided, further,
that the first Interest Payment Date shall be June 15, 2003. The
Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to the then applicable interest rate on the Notes to the extent
lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages, if any, (without regard to any
applicable grace period) at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) and Liquidated Damages, if any, to
the Persons who are registered Holders of Notes at the close of
business on the June 1 or December 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest.
Principal, premium, if any, and interest and Liquidated Damages, if
any, on the Notes shall be payable at the office or agency of the
Paying Agent and Registrar within the City and State of New York or,
at the option of the Company, payment of interest and Liquidated
Damages, if any, may be made by check mailed to the Holders of the
Notes at their respective addresses set forth in the register of
Holders of Notes; provided that all payments of principal, premium,
interest and Liquidated Damages thereon, if any, with respect to
Notes the Holders of which have given wire transfer instructions to
the Trustee shall be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders
thereof. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an
Indenture dated as of December 19, 2002 (the "Indenture") between the
Company, the Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended
(15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act
for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this
Paragraph 5, the Company shall not have the option to redeem the
Notes prior to December 15, 2007. Thereafter, the Company shall have
the option to redeem all or a part of the Notes, upon not less than
30 nor more than 60 days' notice, at the redemption prices, expressed
as percentages of principal amount, set forth below, plus accrued and
unpaid interest and Liquidated Damages, if any, on the Notes redeemed
to the applicable redemption date, if redeemed during the
twelve-month period beginning on December 15 of the years indicated
below:
Year Percentage
2007....................................................... 103.438%
2008....................................................... 102.292%
2009....................................................... 101.146%
2010 and thereafter........................................ 100.000%
(b) Notwithstanding the provisions of subparagraph
(a) of this Paragraph 5, at any time prior to December 15, 2005, the
Company may on any one or more occasions redeem, in whole or in part,
up to 35% of the aggregate principal amount of Notes, including
Additional Notes, if any, issued under the Indenture, at a redemption
price of 106.875% of the principal amount of the Notes redeemed, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon
to the redemption date with the net cash proceeds of one or more
Equity Offerings; provided that at least 65% of the aggregate
principal amount of the Notes, including Additional Notes, if any,
issued under the Indenture, remains outstanding immediately after the
occurrence of such redemption, excluding Notes held by the Company
and its Subsidiaries; and the redemption occurs within 90 days of the
date of the closing of such Equity Offering.
6. MANDATORY REDEMPTION. Except as set forth in Sections
3.09, 4.10 and 4.15 of the Indenture, the Company shall not be
required to make mandatory redemption payments with respect to the
Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If a Change of Control occurs, and the Company
does not redeem the Notes as described under clause (5) above within
60 days after the Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any
part, equal to $1,000 or an integral multiple thereof, of each
Holder's Notes at a purchase price in cash equal to 101% of the
aggregate principal amount of the Notes repurchased plus accrued and
unpaid interest and Liquidated Damages, if any, on the Notes
repurchased to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary
consummates any Asset Sales and the aggregate amount of Excess
Proceeds exceeds $20 million, the Company shall commence an offer to
all Holders of Notes and all holders of other Indebtedness that is
pari passu with the Notes containing provisions similar to those set
forth in the Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets to purchase the maximum
principal amount of Notes and such other pari passu Indebtedness that
may be purchased out of the Excess Proceeds (an "Asset Sale Offer")
pursuant to Section 3.09 of the Indenture at an offer price in cash
in an amount equal to 100% of the principal amount plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of
purchase and shall be payable in cash. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Subsidiary) may use those Excess Proceeds for any
purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes and other pari passu Indebtedness
to be purchased on a pro rata basis. Holders of Notes that are the
subject of an offer to purchase shall receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Notice of redemption shall be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions
thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. Notes may be transferred or exchanged
as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or transfer any Note or
portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, the Company need
not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Guarantees or the Notes may be amended
or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding,
including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes, voting as
a single class, and any existing default or compliance with any
provision of the Indenture, the Guarantees or the Notes may be waived
with the consent of the Holders of a majority in principal amount of
the then outstanding Notes, including, without limitation, consents
obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes, voting as a single class. Without the
consent of any Holder of a Note, the Indenture, the Guarantees or the
Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the
Company's or Guarantor's obligations to Holders of the Notes in case
of a merger or consolidation or sale of all or substantially all of
the Company's assets, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any
such Holder, to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act, to provide for the issuance of Additional Notes in
accordance with the Indenture, to allow any Guarantor to execute a
supplemental Indenture to the Indenture and/or a Guarantee with
respect to the Notes, to evidence and provide for the acceptance of
appointment by a successor trustee, to add Guarantees with respect to
the Notes and to secure the Notes.
12. DEFAULTS AND REMEDIES. An "EVENT OF DEFAULT" occurs if:
(i) the Company defaults for a period of 30 days in the payment when
due of interest on, or Liquidated Damages, if any, with respect to,
the Notes; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on the Notes; (iii) the Company or
any of its Restricted Subsidiaries fails to comply with the
provisions of Section 5.01 of the Indenture; (iv) the Company or any
of its Restricted Subsidiaries fails for 30 days after notice to the
Company by the Trustee to comply with any of the provisions of
Sections 4.07, 4.09, 4.10 or 4.15 of the Indenture; (v) the Company
or any of its Restricted Subsidiaries fails for 60 days after notice
to comply with any of the other agreements in the Indenture or the
Notes; (vi) the Company or any of its Restricted Subsidiaries
defaults under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (other than a Securitization Entity) (or the
payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries (other than a Securitization Entity)) whether
such Indebtedness or guarantee now exists, or is created after the
date of this Indenture, if that default (a) is caused by a failure to
pay principal of or premium, if any, or interest on such Indebtedness
on or before the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates without
duplication $50 million or more or its foreign currency equivalent;
(vii) the Company or any of its Restricted Subsidiaries fails to pay
final judgments aggregating in excess of $50 million or its foreign
currency equivalent, excluding amounts covered by insurance, which
judgments are not paid, discharged or stayed for a period of 60 days;
(viii) certain events of bankruptcy or insolvency occur with respect
to the Company or any of its Significant Subsidiaries that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary pursuant
to or within the meaning of Bankruptcy Law; or (ix) except as
permitted by the Indenture, any Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under such Guarantor's Guarantee.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all the Notes to be due and
payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, with
respect to the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law, all outstanding Notes shall become due and payable
without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default if it
determines that withholding notice is in their interest, except a
Default or Event of Default relating to the payment of principal or
interest or Liquidated Damages, if any. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to
the Trustee may on behalf of the Holders of all of the Notes waive
any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the
payment of interest or Liquidated Damages, if any, on, or the
principal of, the Notes. The Company is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture,
and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator or stockholder, of the Company or any
Guarantor, as such, shall not have any liability for any obligations
of the Company or the Guarantors under the Notes, the Guarantees or
the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the
Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided
to Holders of Notes under the Indenture, Holders of Restricted Global
Notes and Restricted Definitive Notes shall have all the rights set
forth in the Registration Rights Agreement dated as of December 19,
2002, between the Company and the parties named on the signature
pages thereof (the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon. The Company shall furnish to
any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be
made to:
Ball Corporation
10 Longs Peak Drive
Broomfield, Colorado 80021-2510
Telecopier No.: (303) 460-2691
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_____________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ____________________
Your Signature:________________________________
(sign exactly as your name appears
on the face of this senior note)
Tax Identification No:__________________________
Signature Guarantee:____________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $_____________
Date: ____________________
Your Signature:______________________________
(sign exactly as your name appears
on the face of this senior note)
Tax Identification No:_______________________
Signature Guarantee:________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE (1)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note,
have been made:
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount of decrease (or of Trustee or
Date of Exchange of this Global Note this Global Note increase) Custodian
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
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- -------------------------------------------------------------------------------------------------------------------
(1) This should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Ball Corporation
10 Longs Peak Drive
Broomfield, Colorado 80021-2510
Attention: Treasurer
The Bank of New York
101 Barclay Street, Floor 8 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: 6-7/8% Senior Notes due 2012 (CUSIP )
Reference is hereby made to the Indenture, dated as of December 19,
2002 (the "Indenture"), among Ball Corporation, as issuer (the "Company"), the
Guarantors named on the signature pages thereto and The Bank of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Definitive Note pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements of Rule
144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Note and/or the Definitive Note and in the Indenture and the
Securities Act.
2. |_| Check if Transferee will take delivery of a beneficial
interest in the Temporary Regulation S Global Note, the Regulation S Global
Note or a Definitive Note pursuant to Regulation S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting
on its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S under the Securities Act, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act and (iv)
if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, the Temporary Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. |_| Check and complete if Transferee will take delivery of a
beneficial interest in the IAI Global Note or a Definitive Note pursuant to
any provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) |_| such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the
Securities Act;
or
(d) |_| such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies
that it has not engaged in any general solicitation within the
meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form
of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) |_| Check if Transfer is pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) |_| Check if Transfer is pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
__________________________________________
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated: _______________________
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP 058498AE6), or
(ii) |_| Regulation S Global Note (CUSIP U05796AC8),
or
(iii) |_| IAI Global Note (CUSIP 058498AG1); or
(b) |_| a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP 058498AE6), or
(ii) |_| Regulation S Global Note (CUSIP U05796AC8),
or
(iii) |_| IAI Global Note (CUSIP 058498AG1); or
(iv) |_| Unrestricted Global Note (CUSIP ); or
(b) |_| a Restricted Definitive Note; or
(c) |_| an Unrestricted Definitive Note, in accordance with
the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Ball Corporation
10 Longs Peak Drive
Broomfield, Colorado 80021-2510
Attention: Treasurer
The Bank of New York
101 Barclay Street, Floor 8 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: 6-7/8% Senior Notes due 2012 (CUSIP )
Reference is hereby made to the Indenture, dated as of December 19,
2002 (the "Indenture"), among Ball Corporation, as issuer (the "Company"), the
Guarantors named on the signature pages thereto and The Bank of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in
a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in accordance
with the Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(b) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(c) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
is being acquired in compliance with any applicable blue sky securities laws
of any state of the United States.
(d) |_| Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies
that the Restricted Definitive Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest
in the [CHECK ONE] |_| 144A Global Note, |_| Regulation S Global Note, |_| IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant
to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
-----------------------------------
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated: ______________________
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Ball Corporation
10 Longs Peak Drive
Broomfield, Colorado 80021-2510
Attention: Treasurer
The Bank of New York
101 Barclay Street, Floor 8 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: 6-7/8% Senior Notes due 2012 (CUSIP )
Reference is hereby made to the Indenture, dated as of December 19,
2002 (the "Indenture"), among Ball Corporation, as issuer (the "Company"), the
guarantors named on the signature pages thereto and The Bank of New York, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) |_| a beneficial interest in a Global Note, or
(b) |_| a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and,
if such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with Rule
904 of Regulation S under the Securities Act, (E) pursuant to the provisions
of Rule 144(k) under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise
sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
____________________________________
[Insert Name of Accredited Investor]
By: ____________________________
Name:
Title:
Dated: _______________________
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Senior Note Indenture dated as of December 19, 2002 (the
"Indenture") among Ball Corporation, the Guarantors named on the signature
pages thereto and The Bank of New York, as trustee (the "Trustee"), (a) the
due and punctual payment of the principal of, premium and Liquidated Damages,
if any, and interest on the Notes (as defined in the Indenture), whether at
maturity, by acceleration, redemption or otherwise, the due and punctual
payment of interest on overdue principal and premium, and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders of
Notes and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee. Each Holder of a
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder,
to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that the
Indebtedness evidenced by this Guarantee shall cease to be so subordinated and
subject in right of payment upon any defeasance of this Note in accordance
with the provisions of the Indenture.
[Name of Guarantor(s)]
By:
------------------------------
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of Ball Corporation (or its permitted successor),
an Indiana corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and The Bank of New York, as
trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of December 19, 2002
providing for the issuance of an aggregate principal amount of up to $300.0
million of 6?% Senior Notes due 2012 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all Guarantors named in the
Indenture, to jointly and severally Guarantee to each Holder
of a Note authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of, and premium and Liquidated
Damages, if any, and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful,
and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof
and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that
same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay
the same immediately.
(b) The obligations hereunder shall be
unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of
any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.
(c) The following is hereby waived: diligence,
presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged
except by complete performance of the obligations contained
in the Notes and the Indenture, and the Guaranteeing
Subsidiary accepts all obligations of a Guarantor under the
Indenture.
(e) If any Holder or the Trustee is required by any
court or otherwise to return to the Company, the Guarantors,
or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be
entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby
until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for
the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of
the Indenture, such obligations (whether or not due and
payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the
Holders under the Note Guarantee.
(i) Pursuant to Section 10.02 of the Indenture,
after giving effect to any maximum amount and all other
contingent and fixed liabilities that are relevant under any
applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such
other Guarantor under Article 10 of the Indenture, this new
Note Guarantee shall be limited to the maximum amount
permissible such that the obligations of such Guarantor
under this Note Guarantee will not constitute a fraudulent
transfer or conveyance.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that
the Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiary may Consolidate, etc. on Certain Terms.
(a) The Guaranteeing Subsidiary may not sell or
otherwise dispose of all substantially all of its assets to,
or consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person,
other than the Company or another Guarantor unless:
(i) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(ii) either (A) subject to Sections 10.04 and 10.05
of the Indenture, the Person acquiring the property in any
such sale or disposition or the Person formed by or
surviving any such consolidation or merger unconditionally
assumes all the obligations of that Guarantor, pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee, under the Notes, the Indenture
and the Note Guarantee on the terms set forth herein or
therein; or (B) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable
provisions of the Indenture, including without limitation,
Section 4.10 thereof.
(b) In case of any such consolidation, merger, sale
or conveyance and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the
Note Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions
of the Indenture to be performed by the Guarantor, such
successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may
cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable under the Indenture
which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Note Guarantees so
issued shall in all respects have the same legal rank and
benefit under the Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the
terms of the Indenture as though all of such Note Guarantees
had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and
Section 10.05 of Article 10 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another
Guarantor.
5. Releases.
(a) In the event of any sale or other disposition
of all or substantially all of the assets of any Guarantor,
by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of any
Guarantor, in each case to a Person that is not (either
before or after giving effect to such transaction) a
[Restricted] Subsidiary of the Company, then such Guarantor
(in the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of the capital
stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all
or substantially all of the assets of such Guarantor) will
be released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the
applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by
the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the
provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Note
Guarantee.
(b) Any Guarantor not released from its obligations
under its Note Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the
other obligations of any Guarantor under the Indenture as
provided in Article 10 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of the Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
7. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
[COMPANY]
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
[TRUSTEE],
as Trustee
By: _______________________________
Authorized Signatory