- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
BALL CORPORATION
And
GUARANTORS
Parties Hereto
--------------------------------------
$300,000,000
SERIES A AND SERIES B
73/4% SENIOR NOTES DUE 2006
--------------------------------------
-----------------
SENIOR NOTE INDENTURE
DATED AS OF AUGUST 10, 1998
-----------------
THE BANK OF NEW YORK
Senior Note Trustee
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- -------------------------------------------------------------------------------
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). . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06;11.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03;11.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05,11.02
(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). . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of this Senior Note Indenture.
F-2
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions.. . . . . . . . . . . . . . . . . . . . 18
Section 1.03. Incorporation by Reference of Trust Indenture Act.. . . . 18
Section 1.04. Rules of Construction.. . . . . . . . . . . . . . . . . . 19
ARTICLE 2
THE SENIOR NOTES
Section 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . 19
Section 2.02. Execution and Authentication. . . . . . . . . . . . . . . 20
Section 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . 21
Section 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . 21
Section 2.05. Holder Lists. . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . 22
Section 2.07. Replacement Senior Notes. . . . . . . . . . . . . . . . . 34
Section 2.08. Outstanding Senior Notes. . . . . . . . . . . . . . . . . 34
Section 2.09. Treasury Senior Notes.. . . . . . . . . . . . . . . . . . 35
Section 2.10. Temporary Senior Notes. . . . . . . . . . . . . . . . . . 35
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . 35
Section 2.13. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Senior Note Trustee. . . . . . . . . . . . . . 36
Section 3.02. Selection of Senior Notes to be Redeemed. . . . . . . . . 36
Section 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . 36
Section 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . 37
Section 3.05. Deposit of Redemption Price.. . . . . . . . . . . . . . . 37
Section 3.06. Senior Notes Redeemed in Part.. . . . . . . . . . . . . . 38
Section 3.07. Optional Redemption.. . . . . . . . . . . . . . . . . . . 38
Section 3.08. Mandatory Redemption. . . . . . . . . . . . . . . . . . . 38
Section 3.09. Offer to Purchase by Application of Excess Proceeds.. . . 38
ARTICLE 4
COVENANTS
Section 4.01. Payment of Senior Notes.. . . . . . . . . . . . . . . . . 40
Section 4.02. Maintenance of Office or Agency.. . . . . . . . . . . . . 40
Section 4.03. Reports.. . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 4.04. Compliance Certificate. . . . . . . . . . . . . . . . . . 41
Section 4.06. Stay, Extension and Usury Laws. . . . . . . . . . . . . . 42
Section 4.07. Restricted Payments.. . . . . . . . . . . . . . . . . . . 42
i
Section 4.08. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.. . . . . . . . . . . . . . . . . 45
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred
Stock.. . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.10. Assets Sales. . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.11. Transactions With Affiliates. . . . . . . . . . . . . . . 49
Section 4.12. Liens.. . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.13. Business Activities.. . . . . . . . . . . . . . . . . . . 50
Section 4.14. Corporate Existence.. . . . . . . . . . . . . . . . . . . 50
Section 4.15. Offer to Purchase Upon Change of Control. . . . . . . . . 51
Section 4.16. Additional Senior Subsidiary Guarantees.. . . . . . . . . 51
Section 4.17. Payment for Consents. . . . . . . . . . . . . . . . . . . 52
Section 4.18. Sale and Leaseback Transactions.. . . . . . . . . . . . . 52
Section 4.19. Certain Covenants to Be Suspended Under Certain
Conditions. . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.. . . . . . . . . 53
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 6.06. Control by Majority . . . . . . . . . . . . . . . . . . . 56
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . 56
Section 6.07. Rights of Holders of Senior Notes to Receive Payment. . . 57
Section 6.08. Collection Suit by Senior Note Trustee. . . . . . . . . . 57
Section 6.09. Senior Note Trustee May File Proofs of Claim. . . . . . . 57
Section 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . 58
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . 58
ARTICLE 7
SENIOR NOTE TRUSTEE
Section 7.01. Duties of Senior Note Trustee . . . . . . . . . . . . . . 58
Section 7.02. Rights of Senior Note Trustee . . . . . . . . . . . . . . 59
Section 7.03. Individual Rights of Senior Note Trustee. . . . . . . . . 60
Section 7.04. Senior Note Trustee's Disclaimer. . . . . . . . . . . . . 60
Section 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . . 60
Section 7.06. Reports by Senior Note Trustee to Holders of the
Senior Notes. . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . 61
Section 7.08. Replacement of Senior Note Trustee. . . . . . . . . . . . 61
Section 7.09. Successor Senior Note Trustee by Merger, Etc. . . . . . . 62
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . 62
Section 7.11. Preferential Collection of Claims Against Company . . . . 63
Section 7.12. Senior Note Trustee's Application for Instructions
from the Company. . . . . . . . . . . . . . . . . . . . . 63
ii
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 Senior Notes. . . . . . . . 66
Section 9.02. With Consent of Holders of Senior Notes . . . . . . . . . 67
Section 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . 68
Section 9.04. Revocation and Effect of Consents . . . . . . . . . . . . 68
Section 9.05. Notation on or Exchange of Senior Notes . . . . . . . . . 69
Section 9.06. Senior Note Trustee to Sign Amendments, etc . . . . . . . 69
ARTICLE 10
SENIOR SUBSIDIARY GUARANTEES
Section 10.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 10.02. Limitation on Guarantor Liability . . . . . . . . . . . . 70
Section 10.03. Execution and Delivery of Senior Subsidiary Guarantee . . 70
Section 10.04. Guarantors May Consolidate, etc. on Certain Terms . . . . 71
Section 10.05. Releases Following Sale of Assets . . . . . . . . . . . . 72
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls. . . . . . . . . . . . . . . 72
Section 11.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.03. Communication by Holders of Senior Notes with Other
Holders of Senior Notes . . . . . . . . . . . . . . . . . 73
Section 11.04. Certificate and Opinion as to Conditions Precedent. . . . 73
Section 11.05. Statements Required in Certificate. . . . . . . . . . . . 74
Section 11.06. Rules by Senior Note Trustee and Agents . . . . . . . . . 74
Section 11.07. No Personal Liability of Directors, Officers, Employees
and Stockholders. . . . . . . . . . . . . . . . . . . . . 74
Section 11.08. Governing Law . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.09. No Adverse Interpretation of Other Agreements . . . . . . 74
Section 11.10. Successors. . . . . . . . . . . . . . . . . . . . . . . . 74
Section 11.11. Severability. . . . . . . . . . . . . . . . . . . . . . . 75
Section 11.12. Counterpart Originals . . . . . . . . . . . . . . . . . . 75
Section 11.13. Table of Contents, Headings, etc. . . . . . . . . . . . . 75
iii
EXHIBITS AND SCHEDULES
Exhibit A1 FORM OF SENIOR NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL SENIOR 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 SENIOR SUBSIDIARY GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL SENIOR NOTE INDENTURE TO BE DELIVERED BY
SUBSEQUENT GUARANTORS
Schedule I SCHEDULE OF GUARANTORS
iv
SENIOR NOTE INDENTURE dated as of August 10, 1998 by and among Ball
Corporation, an Indiana corporation (the "COMPANY"), Ball Aerospace and
Technologies Corp., a Delaware corporation, Ball Asia Pacific Limited, a
Colorado corporation, Ball Glass Container Corporation, a Delaware corporation,
Ball Holdings 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,
Ball Technology Services Corporation, a California corporation, BG Holdings I,
Inc., a Delaware corporation, BG Holdings II, Inc., a Delaware corporation,
Efratom Holding, Inc., a Colorado corporation, Latas de Aluminio Reynolds, Inc.,
a Delaware corporation, RCAL Cans, Inc., a Delaware corporation and RIND Cans,
Inc., a Delaware corporation (collectively, the "GUARANTORS") and The Bank of
New York, a New York banking corporation, as Senior Note Trustee (the "SENIOR
NOTE TRUSTEE").
The Company and the Senior Note Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 73/4%
Series A Senior Notes due 2006 (the "SERIES A SENIOR NOTES") and the 73/4%
Series B Senior Notes due 2006 (the "SERIES B SENIOR NOTES" and, together with
the Series A Senior Notes, the "SENIOR NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL SENIOR NOTE" means a global note in the form of Exhibit A1
hereto bearing the Global Senior 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 Senior Notes sold in reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person (a) existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person
or is otherwise acquired by such specified Person or (b) assumed in connection
with the purchase of all or substantially all the assets of such other Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into, acquiring or becoming
a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured
by a Lien encumbering any asset acquired by such specified Person.
"ACQUISITION" means the acquisition by the Company and Ball Metal Beverage
Container Corp. of substantially all the assets of the North American beverage
can business of Reynolds Metals Company.
"ADDITIONAL ASSETS" means (i) any property or assets (other than Capital
Stock, Indebtedness or rights to receive payments over a period greater than
180 days) that is usable by the Company or a Restricted Subsidiary in a
Permitted Business or (ii) 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.
"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"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or
1
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 securities of a Person shall be deemed to be
control.
"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 Senior Note, the rules and procedures
of the Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback) 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 Section 4.15
and/or Section 5.01 hereof and not by the provisions of Section 4.10 hereof, and
(ii) the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any the Company's Restricted Subsidiaries, in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (a) that have a fair market value in excess of $5.0 million
or (b) for Net Proceeds in excess of $5.0 million. Notwithstanding the
foregoing: (i) a transfer of assets by the Company to a Restricted Subsidiary
of the Company or by a Restricted Subsidiary of the Company to the Company or to
another Restricted Subsidiary of the Company, (ii) 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 that is a Guarantor, (iii) a Restricted
Payment that is not prohibited by Section 4.07 hereof, (iv) sales of receivables
of the type specified in the definition of "Qualified Securitization
Transaction" to a Securitization Entity for the fair market value thereof,
including consideration in the amount specified in the proviso to the definition
of Qualified Securitization Transaction and (v) the sale or disposition of Cash
Equivalents or obsolete equipment, will not be deemed to be Asset Sales.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) 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).
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"BOARD OF DIRECTORS" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"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 such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, all shares, interests,
participation, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on
2
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 (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than one
year from the date of acquisition, (iii) 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 Thompson Bank Watch Rating of "B" or better, (iv) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above and (v)
commercial paper having the highest rating obtainable from Moody's Investors
Service, Inc. or one of the two highest ratings from Standard & Poor's with
maturities of not more than six months from the date of acquisition.
"CEDEL" means Cedel Bank, SA.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, 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 such term is used in Section 13(d)(3) of
the Exchange Act; (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company; (iii) 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 "beneficial owners" (as such
term is defined in Rule 13d-3 and Rule l3d-5 under the Exchange Act, except that
a person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the total of the Voting
Stock of the Company (measured by voting power rather than number of shares);
(iv) the first day on which a majority of the members of the Board of Directors
of the Company are not Continuing Directors; or (v) 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).
"COMPANY" means Ball Corporation, and any and all successors thereto.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) 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 (iii) 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, 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)
3
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) 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 noncash expenses (excluding any such noncash 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 noncash expenses were
deducted in computing such Consolidated Net Income, minus (v) 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. Notwithstanding the
foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Restricted
Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company only to the extent (and in same
proportion) that the Net Income of such Restricted Subsidiary was included in
calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any 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 (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted Subsidiary,
(ii) 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, (iii)
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 (iv) 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 (i) was a member of such Board of
Directors on the date of this Senior Note Indenture or (ii) 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 SENIOR NOTE TRUSTEE" shall be at the address
of the Senior Note Trustee specified in Section 11.02 hereof or such other
address as to which the Senior Note Trustee may give notice to the Company.
"CREDIT AGREEMENTS" means (i) the Long-Term Credit Agreement dated as of
August 10, 1998 among the Company, the financial institutions from time to time
a party thereto as lenders, The First National Bank of Chicago, in its capacity
as Administrative Agent, Bank of America National Trust and Savings Association,
in its capacity as Syndication Agent, and Lehman Commercial Paper Inc., in its
capacity as Documentation Agent (as the same may from time to time be amended,
modified, supplemented and/or restated, the "LONG-TERM CREDIT AGREEMENT"), (ii)
the Short-Term Credit Agreement dated as of August 10, 1998 among the Company,
the financial institutions from time to time a party thereto as lenders, The
First National Bank of Chicago, in its capacity as Administrative Agent, Bank of
America National Trust and Savings Association, in its capacity as Syndication
Agent, and Lehman Commercial Paper Inc., in its capacity
4
as Documentation Agent (as the same may from time to time be amended,
modified, supplemented and/or restated, the "SHORT-TERM CREDIT AGREEMENT"),
and (iii) the Canadian Revolving Credit Agreement dated as of August 10, 1998
among the Company, Ball Packaging Products Canada, Inc., and the Royal Bank
of Canada.
"CREDIT FACILITIES" means, with respect to the Company, one or more debt
facilities (including, without limitation, the Credit Agreements) or commercial
paper facility with banks or other institutional lenders providing for revolving
credit loans, receivables financing (including through the sale of receivables
to such lenders or to special purpose entities formed to borrow from such
lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.
"CUSTODIAN" means the Senior Note Trustee, as custodian with respect to the
Senior 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 SENIOR NOTE" means a certificated Senior Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of Exhibit A1 hereto except that such Senior Note shall not bear the
Global Senior Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Senior Note" attached thereto.
"DEPOSITARY" means, with respect to the Senior 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 Senior Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Senior Note 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.
"DESIGNATED SENIOR DEBT" means (i) any Indebtedness outstanding under the
Credit Agreements and (ii) any other Senior Debt permitted hereunder the
principal amount of which is $25.0 million or more and that has been designated
by the Company as "Designated Senior Debt."
"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 at the option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the date that is 91 days after the date on
which the Senior Notes mature, except to the extent that such Capital Stock is
solely redeemable with, or solely exchangeable for, any Capital Stock of such
Person that is not Disqualified Stock.
"DOMESTIC SUBSIDIARY" means a Subsidiary that is (i) formed under the laws
of the United States of America or a state or territory thereof or (ii) as of
the date of determination, treated as a domestic entity or a partnership or a
division of a domestic entity for United States federal income tax purposes.
5
"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).
"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 Senior Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in the
Senior Registration Rights Agreement.
"EXCHANGE SENIOR NOTES" means the Senior Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"EXCLUDED SUBSIDIARY" means each of the following Subsidiaries of the
Company: Analytic Decisions, Incorporated, a Virginia corporation; Ball
Corporation, a Nevada corporation; Ball-Canada Holdings Inc., a Canadian
corporation; Ball Glass Containers, Inc., a Delaware corporation; Ball
International Sales Corporation, a Delaware corporation; Ball Metal Container
Corporation, an Indiana corporation; Ball Technology Licensing Corporation, an
Indiana corporation; Heekin Can, Inc., a Colorado corporation; Metropack
Containers Corporation, an Indiana corporation; Muncie & Western Railroad
Company, an Indiana corporation; Ball Pan Asia Ltd., a corporation organized
under the laws of Mauritius; and Ball Brazil Holdings Limited, a Company Limited
by Shares organized under the laws of the Cayman Islands; PROVIDED, that each
such Subsidiary shall be an Excluded Subsidiary only if and only for so long as
(i) each such Subsidiary is in existence solely for the purposes of being a
"name-holding" entity, (ii) each such Subsidiary engages in no business, (iii)
each such Subsidiary has no liabilities (including any guarantee of Indebtedness
of any other Person), and (iv) the aggregate of the assets (including
capitalization) of all such Subsidiaries shall not exceed $5,000,000.00.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the date of this Senior Note Indenture.
"FIXED CHARGES" means, with respect to any Person for any period, the sum,
without duplication, of (i) 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, 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), (ii) the consolidated
interest of such Person and its Restricted Subsidiaries that was capitalized
during such period, (iii) 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 (iv) 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 dividend payments on
Equity Interests payable solely in Equity Interests of the Company (other than
Disqualified Stock).
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Restricted Subsidiaries incurs, assumes, Guarantees or
redeems
6
any Indebtedness (other than revolving credit borrowings under any Credit
Facility) or issues preferred stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but 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 or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that
have been made by the Company 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 (iii) of the proviso set forth
in the definition of Consolidated Net Income, (ii) 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 (iii) 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 referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"FOREIGN SUBSIDIARIES" means Subsidiaries of the Company that are not
Domestic Subsidiaries.
"FTB" means FTB Packaging Limited, a Hong Kong corporation.
"FTB GROUP" means FTB and each of its Subsidiaries, including, without
limitation, MCP and each of its Subsidiaries and joint ventures.
"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, the statements and pronouncements of
the Financial Accounting Standards Board and such other statements by such other
entities as have been approved by a significant segment of the accounting
profession, which are applicable at the date of this Senior Note Indenture.
"GLOBAL SENIOR NOTE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Senior Notes issued
under this Senior Note Indenture.
"GLOBAL SENIOR NOTES" means, individually and collectively, each of the
Restricted Global Senior Notes and the Unrestricted Global Senior Notes, in the
form of Exhibits A1 and A2 hereto issued in accordance with Section 2.01,
2.06(b)(iv), 2.06(d)(ii) 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, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"GUARANTORS" means each Domestic Subsidiary of the Company (other than Ball
Capital Corp. and the Excluded Subsidiaries) as of the date of this Senior Note
Indenture and each other Subsidiary that becomes a party to a Senior Subsidiary
Guarantee.
7
"HEDGING OBLIGATIONS" means, with respect to any Person, the net payment
Obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements in the ordinary course of business and pursuant to
past practices designed to protect such Person against fluctuations in commodity
prices, interest rates or currency exchange rates.
"HOLDER" means a Person in whose name a Senior Note is registered.
"IAI GLOBAL SENIOR NOTE" means the global Senior Note in the form of
Exhibit A1 hereto bearing the Global Senior 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 Senior Notes sold to Institutional
Accredited Investors.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all Indebtedness of others
secured by a Lien on any asset of such Person (whether or not such Indebtedness
is assumed by such Person) and, to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person, and any
liability, whether or not contingent and whether or not it appears on the
balance sheet of such other Person. The amount of any Indebtedness outstanding
as of any date shall be (i) the accreted value thereof, in the case of any
Indebtedness that does not require current payments of interest, and (ii) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Senior Note through a Participant.
"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 are not also QIBs.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other Obligations),
advances of assets or capital contributions (excluding commission, travel and
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 of its Restricted Subsidiaries 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 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 Senior Note 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
8
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 Senior Notes for use by such Holders
in connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"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 10.0%
of the principal amount of such Indebtedness at such time.
"LIQUIDATED DAMAGES" means all liquidated damages then owing pursuant to
Section 5 of the Senior Registration Rights Agreement.
"MARKETABLE SECURITIES" means, with respect to any Asset Sale, any readily
marketable equity securities that are (i) traded on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market; and (ii) issued by a
corporation having a total equity market capitalization of not less than $250.0
million; PROVIDED that the excess of (A) the aggregate amount of securities of
any one such corporation held by the Company and any Restricted Subsidiary over
(B) ten times the average daily trading volume of such securities during the 20
immediately preceding trading days shall be deemed not to be Marketable
Securities; as determined on the date of the contract relating to such Asset
Sale.
"MCP" means M.C. Packaging (Hong Kong) Limited, a Hong Kong corporation.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) 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, (ii) any extraordinary gain or loss,
together with any related provision for taxes on such extraordinary gain or
loss, and (iii) 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 any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.
9
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Senior Notes being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) 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.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"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 11.04 and 11.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is acceptable
to the Senior Note Trustee, that meets the requirements of Sections 11.04 and
11.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Senior Note Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"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 Senior Note Indenture and
businesses substantially similar, related or incidental thereto or reasonable
extensions thereof.
"PERMITTED INVESTMENTS" means (a) any Investment in the Company or in a
Restricted Subsidiary of the Company; (b) any Investment in Cash Equivalents;
(c) 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 (i)
such Person becomes a Restricted Subsidiary of the Company and a Guarantor or
(ii) 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 that is a Guarantor; (d)
any Restricted 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 hereto; (e) any acquisition of assets solely in exchange for
the issuance of Equity Interests (other than Disqualified Stock) of the Company;
(f) other Investments by
10
the Company or any of its Restricted Subsidiaries in any Person having an
aggregate fair market value (measured as of the date made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (f) that are at the time
outstanding, not to exceed $50.0 million; (g) Investments arising in
connection with Hedging Obligations that are incurred in the ordinary course
of business consistent with past practices, for the purpose of fixing or
hedging currency, commodity or interest rate risk (including with respect to
any floating rate Indebtedness that is permitted by the terms of this Senior
Note Indenture to be outstanding) in connection with the conduct of the
business of the Company and its Restricted Subsidiaries which are Guarantors;
(h) any Investment by the Company or a 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; (i) any Investment existing on the
date of this Senior Note Indenture and any amendment, modification,
restatement, supplement, extension, renewal, refunding, replacement,
refinancing, in whole or in part, thereof; (j) any Investment in FTB Group,
the proceeds of which are used to permanently repay Indebtedness of FTB Group
that was outstanding on the date of this Senior Note Indenture; and (k)
Investments in Permitted Joint Ventures of up to $25 million outstanding at
any time.
"PERMITTED JOINT VENTURE" means 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.
"PERMITTED LIENS" means (i) Liens on assets (including, without limitation,
the capital stock of a Subsidiary) of the Company or any of the Guarantors to
secure Indebtedness under the Credit Facilities that were permitted by the terms
of this Senior Note Indenture to be incurred; (ii) Liens on the assets of the
Company or any of the Guarantors to secure Hedging Obligations to any Person
that is a holder of Senior Debt (or an Affiliate thereof) with respect to
Indebtedness under any Credit Facility permitted by this Senior Note Indenture
to be incurred; (iii) Liens on property of a Person existing at the time such
Person is acquired by, merged into or consolidated with the Company or any
Restricted Subsidiary of the Company; PROVIDED that such Liens were in existence
prior to the contemplation of such acquisition, merger or consolidation and do
not extend to any assets other than those of the Person acquired by, merged into
or consolidated with the Company; (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
PROVIDED that such Liens were in existence prior to the contemplation of such
acquisition and only extend to the property so acquired; (v) Liens existing on
the date of this Senior Note Indenture (including a Lien incurred or to be
incurred to secure outstanding Indebtedness under the existing 8.46% Guaranteed
ESOP Notes, Series A due January 15, 1999 and 8.83% Guaranteed ESOP Notes,
Series B due December 15, 2001 of the Ball Corporation Salary Conversion and
Employee Stock Ownership Plan Trust and the related guarantees thereof by the
Company); (vi) Liens to secure any Permitted Refinancing Indebtedness incurred
to refinance any Indebtedness secured by any Lien referred to in the foregoing
clauses (i) through (v), as the case may be, at the time the original Lien
became a Permitted Lien; (vii) Liens in favor of the Company or any Restricted
Subsidiary that is a Guarantor; (viii) Liens to secure Indebtedness permitted by
clause (xiv) of the second paragraph of Section 4.09 hereof, (ix) 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 $25.0 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; (x) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds, deposits to secure the
performance of bids, trade contracts, government contracts, 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);
(xi) Liens for taxes, assessments or governmental charges or claims that are not
11
yet delinquent 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; (xii) Liens to
secure Indebtedness (including Capital Lease Obligations) permitted by clause
(v) of the second paragraph of Section 4.09 hereof, covering only the assets
acquired with such Indebtedness; (xiii) carriers', warehousemen's, mechanics',
landlords' materialmen's, repairmen's or other like Liens arising in the
ordinary course of business in respect of obligations not overdue for a period
in excess of 60 days or which are being contested in good faith by appropriate
proceedings promptly instituted and diligently prosecuted; PROVIDED that any
reserve or other appropriate provision as shall be required to conform with GAAP
shall have been made therefor; (xiv) easements, rights-of-way, zoning and
similar restrictions 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 interfere with or adversely affect in any material
respect the ordinary conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole; (xv) 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; and (xvi) leases or subleases
granted to third Persons not interfering with the ordinary course of business of
the Company or any of its Restricted Subsidiaries, (xvii) Liens (other than any
Lien imposed by ERISA or any rule or regulation promulgated thereunder) incurred
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance, and other types of social security;
(xviii) deposits made in the ordinary course of business to secure liability to
insurance carriers; (xix) 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; (xx) any attachment
or judgment Lien not constituting an Event of Default under clause (i) of the
first paragraph of Section 6.01 hereof; (xxi) any interest or title of a lessor
or sublessor under any operating lease; (xxii) Liens 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; and (xxiii)
Liens under licensing agreements for use of Intellectual Property entered into
in the ordinary course of business.
"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: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued and unpaid interest and premium, if any, on, any Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus the amount
of reasonable expenses incurred in connection therewith); (ii) 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; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Senior 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 Senior Notes on terms at least as
favorable to the Holders of Senior Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the
Company or a Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
12
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section 2.06(g)(i)
to be placed on all Senior Notes issued under this Senior Note Indenture except
where otherwise permitted by the provisions of this Senior Note Indenture.
"PUBLIC EQUITY OFFERING" means any underwritten primary public offering of
the Common Stock or other Voting Stock of the Company (other than Disqualified
Stock) pursuant to an effective registration statement (other than a
registration statement on Form S-4, Form S-8, or any successor or similar form)
under the Securities Act.
"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
ninety 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 ninety
preceding days.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL SENIOR NOTE" means a Regulation S Temporary Global
Senior Note or Regulation S Permanent Global Senior Note, as appropriate.
"REGULATION S PERMANENT GLOBAL SENIOR NOTE" means a permanent global Senior
Note in the form of Exhibit A1 hereto bearing the Global Senior 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 Senior
Note upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL SENIOR NOTE" means a temporary global Senior
Note in the form of Exhibit A2 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 Senior Notes initially sold in reliance on Rule 903 of Regulation S.
13
"RESPONSIBLE OFFICER," when used with respect to the Senior Note Trustee,
means any officer within the corporate trust department of the Senior Note
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the Senior
Note 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 Senior Note Indenture.
"RESTRICTED DEFINITIVE SENIOR NOTE" means a Definitive Senior Note bearing
the Private Placement Legend.
"RESTRICTED GLOBAL SENIOR NOTE" means a Global Senior 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 Senior Note Indenture, all Subsidiaries of the Company other than FTB
Group, 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.
"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 (i) is guaranteed by the Company
or any Restricted Subsidiary of the Company other than pursuant to Standard
Securitization Undertakings or Limited Originator Recourse, (ii) 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 (iii) 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
14
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 Senior Note Trustee by
filing with the Senior Note 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.
"SENIOR DEBT" means (i) all Indebtedness outstanding under the Credit
Facility permitted under clauses (i) and (ii) of the second paragraph of Section
4.09 hereof, (ii) any other Indebtedness permitted to be incurred by the Company
under the terms of this Senior Note Indenture, unless the instrument under which
such Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Senior Notes and (iii) all Obligations
with respect to the foregoing. Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) any Indebtedness of the
Company to any of its Subsidiaries or other Affiliates, (y) any trade payables
or (z) any Indebtedness that is incurred in violation of this Senior Note
Indenture.
"SENIOR MAKE-WHOLE PREMIUM" means, in connection with any optional
redemption of any Senior Note, the excess, if any, of (i) the aggregate present
value as of the date of such redemption of each dollar of principal of such
Senior Note being redeemed and the amount of interest (exclusive of interest
accrued to the date of redemption) that would have been payable in respect of
such dollar if such redemption had not been made, determined by discounting, on
a semiannual basis, such principal and interest at a rate equal to the sum of
the Treasury Yield (determined on the Business Day immediately preceding the
date of such redemption) plus 0.5% per annum, from the respective dates on which
such principal and interest would have been payable if such redemption had not
been made, over (ii) the aggregate principal amount of such Senior Note being
redeemed.
"SENIOR NOTE INDENTURE" means this Senior Note Indenture, as amended or
supplemented from time to time.
"SENIOR NOTES" has the meaning assigned to it in the preamble to this
Senior Note Indenture.
"SENIOR NOTE TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Senior Note
Indenture and thereafter means the successor serving hereunder.
"SENIOR REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement with respect to the Senior Notes, dated as of August 10, 1998, 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.
"SENIOR SUBORDINATED NOTE INDENTURE" means that certain Senior Subordinated
Note Indenture, dated as of the date of this Senior Note Indenture, between the
Company, the Guarantors and The Bank of New York as Senior Subordinated Note
Trustee, as amended or supplemented from time to time, relating to the Senior
Subordinated Notes.
"SENIOR SUBORDINATED NOTES" means the Company's 8 1/4% Senior Subordinated
Notes due 2008 issued concurrently pursuant to the Senior Subordinated Note
Indenture.
"SENIOR SUBSIDIARY GUARANTEE" means the Guarantee of the Senior Notes by
each of the Guarantors pursuant to Article 10 hereof and in the form of
Guarantee endorsed on the forms of Senior Note attached as
15
Exhibits A1 and A2 hereto and any additional Guarantee of the Senior Notes to
be executed by any Restricted Subsidiary of the Company pursuant to Section
4.16 hereof.
"SERIES A SENIOR NOTES" has the meaning assigned to it in the preamble to
this Senior Note Indenture.
"SERIES B SENIOR NOTES" has the meaning assigned to it in the preamble to
this Senior Note Indenture.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Senior 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 Senior Note 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 such payment of
interest or principal was scheduled to be paid in the Credit Agreements or other
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 Person, (i) 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 (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or an entity described in clause (i) and
related to such Person or (b) the only general partners of which are such Person
or of one or more entities described in clause (i) and related to such Person
(or any combination thereof).
"SUBORDINATED SUBSIDIARY GUARANTEE" means the Guarantee of the Senior
Subordinated Notes by each of the Guarantors pursuant to the Senior Subordinated
Note Indenture and any additional Guarantee of the Senior Subordinated Notes to
be executed by any Restricted Subsidiary of the Company pursuant to the Senior
Subordinated Note Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Senior Note 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 entering into the Credit Agreements; the issuance
of the Senior Notes and the Senior Subordinated Notes; and the Acquisition.
"TREASURY YIELD" means, in connection with the calculation of any Senior
Make-Whole Premium on any Senior Note, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) that has become publicly available at least two Business Days prior
to the date fixed for redemption
16
(or, if such Statistical Release is no longer published, any publicly
available source of similar data)) equal to the then remaining maturity of
such Senior Note; PROVIDED that if no United States Treasury security is
available with such a constant maturity and for which a closing yield is
given, the Treasury Yield shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the closing yields of
United States Treasury securities for which such yields are given, except
that if the remaining maturity of such Senior Note is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"UNRESTRICTED DEFINITIVE SENIOR NOTE" means one or more Definitive Senior
Notes that do not bear and are not required to bear the Private Placement
Legend.
"UNRESTRICTED GLOBAL SENIOR NOTE" means a permanent global Senior Note in
the form of Exhibit A1 attached hereto that bears the Global Senior Note Legend
and that has the "Schedule of Exchanges of Interests in the Global Senior Note"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depositary, representing a series of Senior Notes that do not
bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means each of FTB Group, Ball Capital Corp. and
the Excluded Subsidiaries. In addition, "Unrestricted Subsidiary" means (i) any
Subsidiary that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) 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; (c) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's net worth; and (d) 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 such
designation by the Board of Directors shall be evidenced to the Senior Note
Trustee by filing with the Senior Note Trustee a certified copy of the board
resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted by Section 4.07 hereof.
"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 (i) 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 thereof, 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 (ii) the then outstanding principal
amount of such Indebtedness.
17
"WHOLLY OWNED SUBSIDIARY" means a Restricted Subsidiary, 100% of the
outstanding Capital Stock and other Equity Interests of which is directly or
indirectly owned by the Company.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
"AFFILIATE TRANSACTION". . . . . . . . . . . . . . . . . . . . . . 4.11
"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" . . . . . . . . . . . . . . . . . . . . 4.19
"LEGAL DEFEASANCE" . . . . . . . . . . . . . . . . . . . . . . . . 8.02
"LONG-TERM CREDIT AGREEMENT" . . . . . . . . . . . . . . . . . . . 1.01
"MOODY'S". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.19
"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
"S&P". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.19
"SENIOR ASSET SALE OFFER". . . . . . . . . . . . . . . . . . . . . 4.10
"SHORT-TERM CREDIT AGREEMENT". . . . . . . . . . . . . . . . . . . 1.01
"SUSPENDED COVENANTS". . . . . . . . . . . . . . . . . . . . . . . 4.19
"SUSPENSION PERIOD". . . . . . . . . . . . . . . . . . . . . . . . 4.19
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Senior Note Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Senior Note
Indenture.
The following TIA terms used in this Senior Note Indenture have the
following meanings:
"INDENTURE SECURITIES" means the Senior Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Senior Note;
"INDENTURE TO BE QUALIFIED" means this Senior Note Indenture;
18
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Senior Note
Trustee; and
"OBLIGOR" on the Senior Notes and the Senior Subsidiary Guarantees
means the Company and the Guarantors, respectively, and any successor obligor
upon the Senior Notes and the Senior Subsidiary Guarantees, respectively.
All other terms used in this Senior Note 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 Senior Notes and the Senior Note Trustee's certificate
of authentication shall be substantially in the form of Exhibits A1 and A2
hereto. The Senior Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Senior Note shall be dated the date
of its authentication. The Senior Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Senior Notes shall constitute,
and are hereby expressly made, a part of this Senior Note Indenture and the
Company, the Guarantors and the Senior Note Trustee, by their execution and
delivery of this Senior Note Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Senior Note conflicts with the express provisions of this Senior Note Indenture,
the provisions of this Senior Note Indenture shall govern and be controlling.
(b) GLOBAL SENIOR NOTES. Senior Notes issued in global form shall be
substantially in the form of Exhibits A1 or A2 attached hereto (including the
Global Senior Note Legend thereon and the "Schedule of Exchanges of Interests in
the Global Senior Note" attached thereto). Senior Notes issued in definitive
form shall be substantially in the form of Exhibit A1 attached hereto (but
without the Global Senior Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Senior Note" attached thereto). Each
Global Senior Note shall represent such of the outstanding Senior Notes as shall
be specified therein
19
and each shall provide that it shall represent the aggregate principal amount
of outstanding Senior Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Senior Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Senior Note to
reflect the amount of any increase or decrease in the aggregate principal
amount of outstanding Senior Notes represented thereby shall be made by the
Senior Note Trustee or the Custodian, at the direction of the Senior Note
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) TEMPORARY GLOBAL SENIOR NOTES. Senior Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the Regulation
S Temporary Global Senior Note, which shall be deposited on behalf of the
purchasers of the Senior Notes represented thereby with the Senior Note 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 Cedel Bank, duly executed by
the Company and authenticated by the Senior Note Trustee as hereinafter
provided. The Restricted Period shall be terminated upon the receipt by the
Senior Note Trustee of (i) a written certificate from the Depositary, together
with copies of certificates from Euroclear and Cedel Bank 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 Senior 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 Senior Note or an IAI Global Senior Note
bearing a Private Placement Legend, all as contemplated by Section 2.06(a)(ii)
hereof), and (ii) an Officers' Certificate from the Company. Following the
termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Senior Note shall be exchanged for beneficial interests in
Regulation S Permanent Global Senior Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Senior Notes, the Senior Note Trustee shall cancel the Regulation S
Temporary Global Senior Note. The aggregate principal amount of the Regulation
S Temporary Global Senior Note and the Regulation S Permanent Global Senior
Notes may from time to time be increased or decreased by adjustments made on the
records of the Senior Note Trustee and the Depositary or its nominee, as the
case may be, in connection with transfers of interest as hereinafter provided.
(d) EUROCLEAR AND CEDEL 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 Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Senior Note and the
Regulation S Permanent Global Senior Notes that are held by Participants through
Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Senior Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Senior Note no
longer holds that office at the time a Senior Note is authenticated, the Senior
Note shall nevertheless be valid.
A Senior Note shall not be valid until authenticated by the manual
signature of the Senior Note Trustee. The signature shall be conclusive
evidence that the Senior Note has been authenticated under this Senior Note
Indenture.
The Senior Note Trustee shall, upon a written order of the Company signed
by one Officer (an "AUTHENTICATION ORDER"), authenticate Senior Notes for
original issue up to the aggregate principal amount stated in paragraph 4 of the
Senior Notes. The aggregate principal amount of Senior Notes outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof.
20
The Senior Note Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Senior Notes. An authenticating agent may
authenticate Senior Notes whenever the Senior Note Trustee may do so. Each
reference in this Senior Note Indenture to authentication by the Senior Note
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 Senior Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Senior Notes may be presented for payment ("PAYING
AGENT"). The Registrar shall keep a register of the Senior 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 Senior Note Trustee in writing of the name
and address of any Agent not a party to this Senior Note Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Senior Note 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 Senior Notes.
The Company initially appoints the Senior Note Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Senior Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Senior Note
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Senior Note Trustee all money held by the Paying Agent
for the payment of principal, premium or Liquidated Damages, if any, or interest
on the Senior Notes, and will notify the Senior Note Trustee of any default by
the Company in making any such payment. While any such default continues, the
Senior Note Trustee may require a Paying Agent to pay all money held by it to
the Senior Note Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Senior Note Trustee. Upon payment over to the
Senior Note 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 Senior
Note Trustee shall serve as Paying Agent for the Senior Notes.
SECTION 2.05. HOLDER LISTS.
The Senior Note 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 Senior Note Trustee is not the Registrar, the Company shall furnish to the
Senior Note Trustee at least seven Business Days before each interest payment
date and at such other times as the Senior Note Trustee may request in writing,
a list in such form and as of such date as the Senior Note Trustee may
reasonably require of the names and addresses of the Holders of Senior Notes and
the Company shall otherwise comply with TIA Section 312(a).
21
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL SENIOR NOTES. A Global Senior 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
Senior Notes will be exchanged by the Company for Definitive Senior Notes if (i)
the Company delivers to the Senior Note 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 (ii) the Company in its sole
discretion determines that the Global Senior Notes (in whole but not in part)
should be exchanged for Definitive Senior Notes and delivers a written notice to
such effect to the Senior Note Trustee; provided that in no event shall the
Regulation S Temporary Global Senior Note be exchanged by the Company for
Definitive Senior 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 (i) or (ii) above, Definitive Senior Notes shall be issued
in such names as the Depositary shall instruct the Senior Note Trustee. Global
Senior Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10 hereof. Every Senior Note authenticated and delivered
in exchange for, or in lieu of, a Global Senior 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 Senior Note.
A Global Senior Note may not be exchanged for another Senior Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global
Senior Note may be transferred and exchanged as provided in Section 2.06(b), (c)
or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL SENIOR
NOTES. The transfer and exchange of beneficial interests in the Global Senior
Notes shall be effected through the Depositary, in accordance with the
provisions of this Senior Note Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Senior 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
Senior Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL SENIOR
NOTE. Beneficial interests in any Restricted Global Senior
Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted
Global Senior 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 Senior 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 Senior Note may be transferred to
Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Note.
No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described
in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL SENIOR NOTES. In connection with all transfers and
exchanges of beneficial interests that are not subject to
Section 2.06(b)(i) above, the transferor of such beneficial
interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be
credited a beneficial
22
interest in another Global Senior Note in an amount equal
to the beneficial interest to be transferred or exchanged
and (2) instructions given in accordance with the
Applicable Procedures containing information regarding
the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Senior Note
in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Senior
Note shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no
event shall Definitive Senior Notes be issued upon the
transfer or exchange of beneficial interests in the
Regulation S Temporary Global Senior 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)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in
the Restricted Global Senior Notes. Upon satisfaction of
all of the requirements for transfer or exchange of
beneficial interests in Global Senior Notes contained in
this Senior Note Indenture and the Senior Notes or
otherwise applicable under the Securities Act, the Senior
Note Trustee shall adjust the principal amount of the
relevant Global Senior Note(s) pursuant to Section
2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL SENIOR NOTE. A beneficial interest in any Restricted
Global Senior Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in
another Restricted Global Senior Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Senior 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 Senior Note or the Regulation S Global Senior
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 Senior 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.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SENIOR NOTE FOR BENEFICIAL INTERESTS IN
THE UNRESTRICTED GLOBAL SENIOR NOTE. A beneficial interest
in any Restricted Global Senior Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted
Global Senior Note or transferred to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Senior Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above
and:
23
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Senior
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 (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange
Senior 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 Senior
Registration Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Senior
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange
such beneficial interest for a beneficial interest
in an Unrestricted Global Senior Note, a
certificate from such holder in the form of
Exhibit C hereto, including the certifications in
item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior 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 Senior 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
Senior 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 Senior Note Trustee shall
authenticate one or more Unrestricted Global Senior 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 Senior Note
cannot be exchanged for, or transferred to Persons who take
delivery thereof in the form of, a beneficial interest in a
Restricted Global Senior Note.
24
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE SENIOR
NOTES.
(i) Beneficial Interests in Restricted Global Senior Notes to
Restricted Definitive Senior Notes. If any holder of a
beneficial interest in a Restricted Global Senior Note
proposes to exchange such beneficial interest for a
Restricted Definitive Senior Note or to transfer such
beneficial interest to a Person who takes delivery thereof
in the form of a Restricted Definitive Senior Note, then,
upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange such
beneficial interest for a Restricted Definitive Senior
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 Senior Note Trustee shall cause the aggregate principal
amount of the applicable Global Senior Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Senior Note Trustee shall
authenticate and deliver to the Person designated in the
instructions a Definitive Senior Note in the appropriate
principal amount. Any Definitive Senior Note issued in
exchange for a beneficial interest in a Restricted Global
Senior 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
25
instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant.
The Senior Note Trustee shall deliver such Definitive
Senior Notes to the Persons in whose names such Senior
Notes are so registered. Any Definitive Senior Note
issued in exchange for a beneficial interest in a
Restricted Global Senior Note pursuant to this Section
2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer
contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global
Senior Note may not be exchanged for a Definitive Senior
Note or transferred to a Person who takes delivery thereof
in the form of a Definitive Senior 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(c)(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.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SENIOR NOTES TO
UNRESTRICTED DEFINITIVE SENIOR NOTES. A holder of a
beneficial interest in a Restricted Global Senior Note may
exchange such beneficial interest for an Unrestricted
Definitive Senior Note or may transfer such beneficial
interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Senior Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Senior
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 (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Senior 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 Senior
Registration Rights Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Senior
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to exchange
such beneficial interest for a Definitive Senior
Note that does not bear the Private Placement
Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a
Restricted Global Senior Note proposes to transfer
such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive
Senior Note that does not bear the Private
Placement Legend, a certificate
26
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.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL SENIOR NOTES TO
UNRESTRICTED DEFINITIVE SENIOR NOTES. If any holder of a
beneficial interest in an Unrestricted Global Senior Note
proposes to exchange such beneficial interest for a
Definitive Senior Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form
of a Definitive Senior Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the
Senior Note Trustee shall cause the aggregate principal
amount of the applicable Global Senior Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Senior Note Trustee shall
authenticate and deliver to the Person designated in the
instructions a Definitive Senior Note in the appropriate
principal amount. Any Definitive Senior Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) 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 Senior Note
Trustee shall deliver such Definitive Senior Notes to the
Persons in whose names such Senior Notes are so registered.
Any Definitive Senior 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 SENIOR NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE SENIOR NOTES TO BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL SENIOR NOTES. If any Holder of a
Restricted Definitive Senior Note proposes to exchange such
Senior Note for a beneficial interest in a Restricted Global
Senior Note or to transfer such Restricted Definitive Senior
Notes to a Person who takes delivery thereof in the form of
a beneficial interest in a Restricted Global Senior Note,
then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Senior Note
proposes to exchange such Senior Note for a beneficial
interest in a Restricted Global Senior 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 Senior 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 Senior Note is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904
27
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 Senior 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 Senior 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 Senior 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 Senior 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 Senior Note Trustee shall cancel the Restricted
Definitive Senior Note, increase or cause to be increased
the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Senior Note, in the
case of clause (B) above, the 144A Global Senior Note, in
the case of clause (c) above, the Regulation S Global Senior
Note, and in all other cases, the IAI Global Senior Note.
(ii) RESTRICTED DEFINITIVE SENIOR NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL SENIOR NOTES. A Holder of a
Restricted Definitive Senior Note may exchange such Senior
Note for a beneficial interest in an Unrestricted Global
Senior Note or transfer such Restricted Definitive Senior
Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Note
only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Senior
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the
Exchange Senior 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 Senior
Registration Rights Agreement;
28
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Senior
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Senior Notes
proposes to exchange such Senior Notes for a
beneficial interest in the Unrestricted Global
Senior Note, a certificate from such Holder in the
form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Senior Notes
proposes to transfer such Senior Notes to a Person
who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global
Senior 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)(ii), the Senior Note
Trustee shall cancel the Definitive Senior Notes and
increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Senior Note.
(iii) UNRESTRICTED DEFINITIVE SENIOR NOTES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL SENIOR NOTES. A Holder of an
Unrestricted Definitive Senior Note may exchange such Senior
Note for a beneficial interest in an Unrestricted Global
Senior Note or transfer such Definitive Senior Notes to a
Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Senior Note at
any time. Upon receipt of a request for such an exchange or
transfer, the Senior Note Trustee shall cancel the
applicable Unrestricted Definitive Senior Note and increase
or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Senior Notes.
If any such exchange or transfer from a Definitive Senior
Note to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when
an Unrestricted Global Senior 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 Senior Note Trustee shall authenticate one or more
Unrestricted Global Senior Notes in an aggregate principal
amount equal to the principal amount of Definitive Senior
Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE SENIOR NOTES FOR DEFINITIVE SENIOR
NOTES. Upon request by a Holder of Definitive Senior Notes and such Holder's
compliance with the provisions of this Section
29
2.06(e), the Registrar shall register the transfer or exchange of Definitive
Senior Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Senior 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).
(i) RESTRICTED DEFINITIVE SENIOR NOTES TO RESTRICTED DEFINITIVE
SENIOR NOTES. Any Restricted Definitive Senior Note may be
transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive
Senior 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.
(ii) RESTRICTED DEFINITIVE SENIOR NOTES TO UNRESTRICTED
DEFINITIVE SENIOR NOTES. Any Restricted Definitive Senior
Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Senior Note or transferred to a
Person or Persons who take delivery thereof in the form of
an Unrestricted Definitive Senior Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Senior
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the
Exchange Senior 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 Senior
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 Senior
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Senior
Notes proposes to exchange such Senior Notes for
an Unrestricted Definitive
30
Senior Note, a certificate from such Holder in the
form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Senior
Notes proposes to transfer such Senior Notes to a
Person who shall take delivery thereof in the form
of an Unrestricted Definitive Senior 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.
(iii) UNRESTRICTED DEFINITIVE SENIOR NOTES TO UNRESTRICTED
DEFINITIVE SENIOR NOTES. A Holder of Unrestricted
Definitive Senior Notes may transfer such Senior Notes to a
Person who takes delivery thereof in the form of an
Unrestricted Definitive Senior Note. Upon receipt of a
request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Senior Notes pursuant
to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Senior Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Senior Note Trustee shall authenticate (i) one or more Unrestricted
Global Senior Notes in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Restricted Global Senior Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not broker-dealers, (y) they are not participating
in a distribution of the Exchange Senior Notes and (z) they are not affiliates
(as defined in Rule 144) of the Company, and accepted for exchange in the
Exchange Offer and (ii) Definitive Senior Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Senior Notes accepted
for exchange in the Exchange Offer. Concurrently with the issuance of such
Senior Notes, the Senior Note Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Senior Notes to be reduced accordingly, and
the Company shall execute and the Senior Note Trustee shall authenticate and
deliver to the Persons designated by the Holders of Definitive Senior Notes so
accepted Definitive Senior Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of all Global
Senior Notes and Definitive Senior Notes issued under this Senior Note Indenture
unless specifically stated otherwise in the applicable provisions of this Senior
Note Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Senior Note and each Definitive Senior Note (and
all Senior Notes issued in exchange therefor or
substitution thereof) shall bear the legend in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
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REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISION OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Senior Note or
Definitive Senior 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 Senior
Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) GLOBAL SENIOR NOTE LEGEND. Each Global Senior Note shall
bear a legend in substantially the following form:
"THIS GLOBAL SENIOR NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE SENIOR NOTE 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 SENIOR NOTE
INDENTURE, (II) THIS GLOBAL SENIOR NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE SENIOR NOTE INDENTURE, (III) THIS GLOBAL SENIOR NOTE
MAY BE DELIVERED TO THE SENIOR NOTE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE SENIOR NOTE
INDENTURE AND
32
(IV) THIS GLOBAL SENIOR NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY."
(iii) REGULATION S TEMPORARY GLOBAL SENIOR NOTE LEGEND. The
Regulation S Temporary Global Senior Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SENIOR NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR CERTIFICATED SENIOR NOTES, ARE AS SPECIFIED IN
THE SENIOR NOTE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL SENIOR NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SENIOR NOTES. At such time
as all beneficial interests in a particular Global Senior Note have been
exchanged for Definitive Senior Notes or a particular Global Senior Note has
been redeemed, repurchased or canceled in whole and not in part, each such
Global Senior Note shall be returned to or retained and canceled by the Senior
Note Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Senior Note is exchanged
for or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Senior Note or for Definitive Senior
Notes, the principal amount of Senior Notes represented by such Global Senior
Note shall be reduced accordingly and an endorsement shall be made on such
Global Senior Note by the Senior Note Trustee or by the Depositary at the
direction of the Senior Note 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
Senior Note, such other Global Senior Note shall be increased accordingly and an
endorsement shall be made on such Global Senior Note by the Senior Note Trustee
or by the Depositary at the direction of the Senior Note Trustee to reflect such
increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Senior Note Trustee shall
authenticate Global Senior Notes and Definitive Senior
Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Senior Note or to a
Holder of a Definitive Senior 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).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Senior Note selected for
redemption in whole or in part, except the unredeemed
portion of any Senior Note being redeemed in part.
(iv) All Global Senior Notes and Definitive Senior Notes
issued upon any registration of transfer or exchange of
Global Senior Notes or Definitive Senior Notes shall be
the valid obligations of the Company, evidencing the
same debt, and entitled to the
33
same benefits under this Senior Note Indenture, as the
Global Senior Notes or Definitive Senior Notes
surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Senior
Notes during a period beginning at the opening of
business 15 days before the day of any selection of
Senior 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 Senior Note so selected for redemption in
whole or in part, except the unredeemed portion of any
Senior Note being redeemed in part or (C) to register
the transfer of or to exchange a Senior Note between a
record date and the next succeeding Interest Payment
Date.
(vi) Prior to due presentment for the registration of a
transfer of any Senior Note, the Senior Note Trustee,
any Agent and the Company may deem and treat the Person
in whose name any Senior Note is registered as the
absolute owner of such Senior Note for the purpose of
receiving payment of principal of and interest on such
Senior Notes and for all other purposes, and none of
the Senior Note Trustee, any Agent or the Company shall
be affected by notice to the contrary.
(vii) The Senior Note Trustee shall authenticate Global
Senior Notes and Definitive Senior Notes in accordance
with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration
of transfer or exchange may be submitted by facsimile.
SECTION 2.07. REPLACEMENT SENIOR NOTES.
If any mutilated Senior Note is surrendered to the Senior Note Trustee or
the Company and the Senior Note Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Senior Note, the Company shall issue and
the Senior Note Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Senior Note if the Senior Note Trustee's requirements
are met. If required by the Senior Note Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Senior Note Trustee and the Company to protect the Company, the Senior Note
Trustee, any Agent and any authenticating agent from any loss that any of them
may suffer if a Senior Note is replaced. The Company may charge for its
expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Senior Note Indenture
equally and proportionately with all other Senior Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING SENIOR NOTES.
The Senior Notes outstanding at any time are all the Senior Notes
authenticated by the Senior Note Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Senior Note effected by the Senior Note 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 Senior Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Senior
Note.
34
If a Senior Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Senior Note Trustee receives proof satisfactory to it
that the replaced Senior Note is held by a bona fide purchaser.
If the principal amount of any Senior 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 Senior Notes payable on that date, then on and after that date such
Senior Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
SECTION 2.09. TREASURY SENIOR NOTES.
In determining whether the Holders of the required principal amount of
Senior Notes have concurred in any direction, waiver or consent, Senior 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 Senior Note Trustee shall be protected in relying on any
such direction, waiver or consent, only Senior Notes that a Responsible Officer
of the Senior Note Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY SENIOR NOTES.
Until certificates representing Senior Notes are ready for delivery, the
Company may prepare and the Senior Note Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Senior Notes. Temporary
Senior Notes shall be substantially in the form of certificated Senior Notes but
may have variations that the Company considers appropriate for temporary Senior
Notes and as shall be reasonably acceptable to the Senior Note Trustee. Without
unreasonable delay, the Company shall prepare and the Senior Note Trustee shall
authenticate definitive Senior Notes in exchange for temporary Senior Notes.
Holders of temporary Senior Notes shall be entitled to all of the benefits
of this Senior Note Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Senior Notes to the Senior Note Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Senior
Note Trustee any Senior Notes surrendered to them for registration of transfer,
exchange or payment. The Senior Note Trustee and no one else shall cancel all
Senior Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall return such canceled Senior Notes to the
Company. The Company may not issue new Senior Notes to replace Senior Notes
that it has paid or that have been delivered to the Senior Note Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Senior 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 Senior Notes and in Section 4.01 hereof. The Company shall notify the
Senior Note Trustee in writing of the amount of defaulted interest proposed to
be paid on each Senior 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
35
least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Senior Note 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 Senior Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Senior Note 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 Senior 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 Senior Notes, and any such redemption shall not be
affected by any defect in or the omission of such numbers. The Company will
promptly notify the Senior Note Trustee of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO SENIOR NOTE TRUSTEE.
If the Company elects to redeem Senior Notes pursuant to the redemption
provisions of Section 3.07 hereof, it shall furnish to the Senior Note 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 Senior Note Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the principal amount of Senior Notes to be redeemed, (iv) the redemption price
and (v) the CUSIP numbers of the Senior Notes to be redeemed.
SECTION 3.02. SELECTION OF SENIOR NOTES TO BE REDEEMED.
If less than all of the Senior Notes are to be redeemed or purchased in an
offer to purchase at any time, the Senior Note Trustee shall select the Senior
Notes to be redeemed or purchased among the Holders of the Senior Notes in
compliance with the requirements of the principal national securities exchange,
if any, on which the Senior Notes are listed or, if the Senior Notes are not so
listed, on a PRO RATA basis, by lot or in accordance with any other method the
Senior Note Trustee considers fair and appropriate. In the event of partial
redemption by lot, the particular Senior 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 Senior Note Trustee from the outstanding Senior
Notes not previously called for redemption.
The Senior Note Trustee shall promptly notify the Company in writing of the
Senior Notes selected for redemption and, in the case of any Senior Note
selected for partial redemption, the principal amount thereof to be redeemed.
Senior Notes and portions of Senior Notes selected shall be in amounts of $1,000
or whole multiples of $1,000; except that if all of the Senior Notes of a Holder
are to be redeemed, the entire outstanding amount of Senior 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 Senior Note Indenture that apply
to Senior Notes called for redemption also apply to portions of Senior Notes
called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Senior Notes are to be redeemed at its registered address.
36
The notice shall identify the Senior Notes to be redeemed, including the
CUSIP numbers, and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Senior Note is being redeemed in part, the portion of the
principal amount of such Senior Note to be redeemed and that, after the
redemption date upon surrender of such Senior Note, a new Senior Note or Senior
Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Senior Note;
(d) the name and address of the Paying Agent;
(e) that Senior Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment,
interest on Senior Notes called for redemption ceases to accrue on and after the
redemption date;
(g) the paragraph of the Senior Notes and/or Section of this Senior Note
Indenture pursuant to which the Senior Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Senior Notes.
At the Company's request, the Senior Note 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 Senior Note Trustee, at least 45 days prior
to the redemption date, an Officers' Certificate requesting that the Senior Note
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,
Senior 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 Senior Note Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Senior Notes to be redeemed
on that date. The Senior Note Trustee or the Paying Agent shall promptly return
to the Company any money deposited with the Senior Note 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 Senior 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 Senior
Notes or the portions of Senior Notes called for redemption. If a Senior 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 Senior Note was
37
registered at the close of business on such record date. If any Senior 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
Senior Notes and in Section 4.01 hereof.
SECTION 3.06. SENIOR NOTES REDEEMED IN PART.
Upon surrender of a Senior Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Senior Note Trustee shall
authenticate for the Holder at the expense of the Company a new Senior Note
equal in principal amount to the unredeemed portion of the Senior Note
surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Senior Notes will be subject to redemption at any time at the
option of the Company, in whole but not in part, upon not less than 30 nor more
than 60 days' notice.
(b) The Senior Notes will be redeemable at a redemption price equal to
100% of the principal amount thereof plus the applicable Senior Make-Whole
Premium, plus, to the extent not included in the Senior Make-Whole Premium,
accrued and unpaid interest and Liquidated Damages, if any, to the date of
redemption.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth in Sections 3.09, 4.10 and 4.15 hereof, the Company
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Senior 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 a Senior Asset Sale Offer, it shall follow the procedures
specified below.
The Senior 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 Senior Notes required
to be purchased pursuant to Section 4.10 hereof (the "OFFER AMOUNT") or, if less
than the Offer Amount has been tendered, all Senior Notes tendered in response
to the Senior Asset Sale Offer. Payment for any Senior 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 Senior Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Senior Notes pursuant to the Senior Asset Sale Offer.
Upon the commencement of a Senior Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Senior Note Trustee and each of the
Holders. The notice shall contain all instructions and
38
materials necessary to enable such Holders to tender Senior Notes pursuant to
the Senior Asset Sale Offer. The Senior Asset Sale Offer shall be made to
all Holders. The notice, which shall govern the terms of the Senior Asset
Sale Offer, shall state:
(a) that the Senior Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Senior Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Senior Note not tendered or accepted for payment shall
continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment, any Senior
Note accepted for payment pursuant to the Senior Asset Sale Offer shall cease to
accrete or accrue interest after the Purchase Date;
(e) that Holders electing to have a Senior Note purchased pursuant to a
Senior Asset Sale Offer may only elect to have all of such Senior Note purchased
and may not elect to have only a portion of such Senior Note purchased;
(f) that Holders electing to have a Senior Note purchased pursuant to any
Senior Asset Sale Offer shall be required to surrender the Senior Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior
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;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Senior Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Senior Note purchased;
(h) that, if the aggregate principal amount of Senior Notes surrendered by
Holders exceeds the Offer Amount, the Company shall select the Senior Notes to
be purchased on a PRO RATA basis (with such adjustments as may be deemed
appropriate by the Company so that only Senior Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Senior Notes were purchased only in part shall be
issued new Senior Notes equal in principal amount to the unpurchased portion of
the Senior 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 Senior Notes or portions thereof tendered pursuant to the Senior Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Senior Notes
tendered, and shall deliver to the Senior Note Trustee an Officers' Certificate
stating that such Senior 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 Senior Notes
tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Senior Note, and the Senior Note Trustee,
upon written request from the Company shall authenticate and mail or deliver
such new Senior Note to such Holder, in a principal
39
amount equal to any unpurchased portion of the Senior Note surrendered. Any
Senior 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 Senior 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.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SENIOR 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 Senior
Notes on the dates and in the manner provided in the Senior 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 Senior 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 Senior 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 Senior Note Trustee or
an affiliate of the Senior Note Trustee, Registrar or co-registrar) where Senior
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 Senior Notes and
this Senior Note Indenture may be served. The Company shall give prompt written
notice to the Senior Note 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 Senior
Note Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Administration Office
of the Senior Note Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Senior 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 Senior Note 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 Senior Note
Trustee as one such office or agency of the Company in accordance with Section
2.03.
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SECTION 4.03. REPORTS.
(a) Whether or not the Company is required by the rules and regulations of
the SEC, so long as any Senior Notes are outstanding, the Company will furnish
to each of the Holders of Senior Notes and to the Senior Note Trustee (i) 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 financial information, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
any consolidated Restricted Subsidiaries and, with respect to the annual
information only, reports thereon by the Company's independent public
accountants (which shall be firm(s) of established national reputation) and (ii)
all information that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports. All such information and
reports shall be filed with the SEC (unless the SEC will not accept such a
filing) on or prior to the dates on which such filings would have been required
to be made had the Company been subject to the rules and regulations of the SEC.
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 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 Senior Note Trustee
is for informational purposes only and the Senior Note 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 Senior Note
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) For so long as any Senior 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 Senior Note 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 Senior Note 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 Senior Note Indenture and is
not in default in the performance or observance of any of the terms, provisions
and conditions of this Senior Note 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 Senior 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
41
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 Senior Notes are outstanding,
deliver to the Senior Note 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 Senior 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 Senior Note 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 Senior Note 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 will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the Company) or
to the direct or indirect holders of the Company's or any of its Restricted
Subsidiaries' 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 or any direct or
indirect parent of the Company or other Affiliate of the Company; (iii) make any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any subordinated Indebtedness, except a payment of interest
or principal at Stated Maturity; 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 thereof; 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
42
(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 the date of this Senior Note Indenture (excluding Restricted
Payments permitted by clauses (ii), (iii), (iv), (v) or (x) 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 immediately
following the date of this Senior Note Indenture 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 as a contribution to its common equity capital
or from the issue or sale since the date of this Senior Note Indenture of Equity
Interests of the Company (other than Disqualified Stock), or of Disqualified
Stock or debt securities of the Company that have been converted into such
Equity Interests (other than Equity Interests (or Disqualified Stock or
convertible debt securities) sold to a Restricted Subsidiary of the Company and
other than Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), 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 the date of this Senior Note Indenture is sold
for cash or otherwise liquidated or repaid for cash, or any Unrestricted
Subsidiary which is designated as an Unrestricted Subsidiary subsequent to the
date of this Senior Note Indenture 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 FURTHER, 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 thereof, if at said date of declaration such payment would have
complied with the provisions of this Senior Note Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any Indebtedness which is subordinated Indebtedness or
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, other Equity Interests of the Company (other
than any 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 defeasance, redemption, repurchase or other acquisition
of Indebtedness which is subordinated Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any dividend or distribution by a Restricted
Subsidiary of the Company to the holders of its common Equity Interests so
long as the Company or such Restricted Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity
Interests in such class or series of securities;
(v) the payment of dividends on the Company's Common Stock and
Series B ESOP Convertible Preferred Stock of up to a combined amount of
$25.0 million per annum; PROVIDED that
43
any amount not utilized by the Company to pay dividends in any calendar
year will not be carried forward to any subsequent year;
(vi) (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 $10.0 million in the
aggregate since the date of this Senior Note 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;
(vii) 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;
(viii) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions described under Section 3.07 of the Senior Subordinated Note
Indenture; PROVIDED, that the amount of any Equity Offering used to effect
such a repurchase, redemption or other acquisition or retirement for value
shall be excluded from the calculation made pursuant to clause (c)(ii) of
the preceding paragraph;
(ix) the repurchase, redemption or other acquisition or
retirement for value of the Senior Subordinated Notes pursuant to the
provisions described under Section 4.10 and Section 4.15 of the Senior
Subordinated Note Indenture; PROVIDED, that as of the date of such
repurchase, redemption or other acquisition or retirement for value, no
Default or Event of Default shall have occurred and be continuing or, with
the passage of time, would occur as a consequence thereof; and
(x) other Restricted Payments in an aggregate amount since the
date of this Senior Note Indenture not to exceed $50.0 million under this
clause (x);
PROVIDED that, with respect to clauses (ii), (iii), (v), (vi), (viii), (ix) and
(x) above, no Default or Event of Default shall have occurred and be continuing
immediately after such transaction or as a consequence thereof.
As of the date of this Senior Note Indenture, all of the Company's
Subsidiaries other than the FTB Group, Ball Capital Corp. and the Excluded
Subsidiaries will be Restricted Subsidiaries. The Board of Directors may
designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such
designation would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. All such outstanding Investments will
be deemed to constitute Investments in an amount equal to the fair market value
of such Investments at the time of such designation. Such designation will only
be permitted if such Restricted Payment would be permitted at such time and if
such Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
If, at any time, any Unrestricted Subsidiary would fail to meet the
requirements in the definition of "Unrestricted Subsidiary" as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted
44
Subsidiary for purposes of this Senior Note 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 covenant). 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 (i) 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, (ii) if such Subsidiary is a
Domestic Subsidiary, such Subsidiary shall have executed and delivered a
supplemental indenture pursuant to which it will become a Guarantor under
this Senior Note Indenture, and (iii) no Default or Event of Default would be
in existence following such designation.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary of the Company, pursuant to the Restricted Payment. The fair market
value of any noncash Restricted Payment or any adjustment made pursuant to
paragraph (c) of 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
Senior Note Trustee, such determination to be based upon an opinion or appraisal
issued by an investment banking firm (or, if an investment banking firm is
generally not qualified to give such an opinion or appraisal, by an appraisal
firm) of national standing if such fair market value exceeds $25.0 million. Not
later than the date of making any Restricted Payment, the Company shall deliver
to the Senior Note Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.07 were computed, together with a copy of any
fairness opinion or appraisal required by this Senior Note Indenture.
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
and such amounts may be credited to clause (c) above, then such amounts will 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 that are not Guarantors to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company or the
Company to (i)(x) pay dividends or make any other distributions to the Company
or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its profits,
or (y) pay any Indebtedness owed to the Company or any of its Restricted
Subsidiaries, (ii) make loans or advances to the Company or any of its
Restricted Subsidiaries or (iii) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (a) Existing Indebtedness as in
effect on the date of this Senior Note Indenture, (b) the Credit Facility as in
effect as of the date of this Senior Note Indenture, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, PROVIDED that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive with respect to such
dividend and other payment restrictions than those contained in the Credit
Facility as in effect on the date of this Senior Note Indenture, (c) this Senior
Note Indenture, the Senior Subordinated Note Indenture, the Senior Notes and the
Senior Subordinated Notes, (d) applicable law or any applicable rule, regulation
or order, (e) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in
45
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 Senior Note Indenture to be incurred, (f) by reason of
customary non-assignment provisions in leases or other contracts entered into
in the ordinary course of business and consistent with past practices, (g)
purchase money obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii)
above on the property so acquired, (h) Indebtedness of Guarantors, PROVIDED
that such Indebtedness was permitted to be incurred pursuant to this Senior
Note Indenture, (i) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced, (j) secured Indebtedness
otherwise permitted to be incurred pursuant to the provisions of Section 4.12
hereof that limits the right of the debtor to dispose of assets securing such
Indebtedness, (k) provisions with respect to the disposition or distribution
of assets or property in joint venture or similar agreements entered into in
the ordinary course of business or (l) 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 apply only to such Securitization Entity.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF 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 that 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 2.00 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 apply
to the incurrence of any of the following items of Indebtedness (collectively,
"PERMITTED DEBT"):
(i) the incurrence by the Company or its Restricted
Subsidiaries of term Indebtedness under the Credit Facility, letters of
credit (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) and related Guarantees under the Credit Facility;
PROVIDED that the aggregate principal amount of all term Indebtedness and
letters of credit of the Company and its Restricted Subsidiaries (with
letters of credit being deemed to have a principal amount equal to the
maximum potential liability of the Company and its Restricted Subsidiaries
thereunder) outstanding under the Credit Facility after giving effect to
such incurrence, including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (i) does not exceed an amount equal to $550.0 million;
(ii) the incurrence by the Company or its Restricted Subsidiaries
of revolving credit Indebtedness under the Credit Facility, letters of
credit (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) and related Guarantees under the Credit Facility;
PROVIDED that the aggregate principal amount of all revolving Indebtedness
and letters of credit of the Company and its Restricted
46
Subsidiaries (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) outstanding under the Credit
Facility after giving effect to such incurrence, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
other Indebtedness incurred pursuant to this clause (ii), does not
exceed $700.0 million less the aggregate amount of Asset Sale proceeds
applied by the Company and its Restricted Subsidiaries to permanently
reduce the availability of revolving credit Indebtedness under the
Credit Agreements pursuant to the provisions of Section 4.10 hereof;
(iii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iv) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Senior Notes, the Senior Subordinated
Notes, the Senior Subsidiary Guarantees and the Subordinated Subsidiary
Guarantees limited in aggregate principal amount, without duplication, to
amounts outstanding under this Senior Note Indenture and the Senior
Subordinated Note Indenture as of their respective dates;
(v) 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 (v), not to exceed 5% of Total Assets;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness;
(vii) 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 is the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Senior Note and this Senior Note Indenture, (ii) if a
Restricted Subsidiary of the Company is the obligor on such Indebtedness,
such Indebtedness is expressly subordinated to the prior payment in full in
cash of such Restricted Subsidiary's Senior Subsidiary Guarantee and
(iii)(A) any subsequent event or 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 (vii);
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the normal course
of business for the purpose of fixing or hedging currency, commodity or
interest rate risk (including with respect to any Indebtedness that is
permitted by the terms of this Senior Note Indenture to be outstanding in
connection with the conduct of their respective businesses and not for
speculative purposes);
(ix) 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 and similar bonds, completion or performance
guarantees or standby letters of credit issued for the purpose of
47
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;
(x) the incurrence of Indebtedness arising from agreements of
the Company or a Restricted Subsidiary 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;
(xi) 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;
(xii) 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 other Restricted Subsidiaries (except for
Standard Securitization Undertakings and Limited Originator Recourse);
(xiii) the guarantee by the Company or any of the Guarantors 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; and
(xiv) 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 other Indebtedness incurred pursuant to this clause (xiv), not to
exceed $75.0 million.
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 (xiv) above as of
the date of incurrence thereof or is entitled to be incurred pursuant to the
first paragraph of this Section 4.09 as of the date of incurrence thereof, the
Company shall, in its sole discretion, classify or reclassify such item of
Indebtedness as of the date of incurrence thereof 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. Accrual of interest, the accretion of accreted
value and the payment of interest in the form of additional Indebtedness will
not be deemed to be an incurrence of Indebtedness for purposes of this Section
4.09.
SECTION 4.10. ASSETS SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
Restricted Subsidiary receives consideration at the time of such Asset Sale at
least equal to the fair market value (evidenced by a resolution of the Board of
Directors set forth in an Officers' Certificate delivered to the Senior Note
Trustee with respect to any Asset Sale determined to have a fair market value
greater than $25.0 million) of the assets or Equity Interests issued or sold or
otherwise disposed of and (ii) at least 75% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of cash or
Cash Equivalents; PROVIDED that the following amounts shall be deemed to be
cash: (w) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary of the Company (other than contingent liabilities and liabilities
that are by their terms subordinated to the Senior Notes or any Guarantee
thereof) that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases
48
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), (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 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.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to repay
Indebtedness under any Credit Facility (and to correspondingly permanently
reduce the commitments with respect thereto in the case of revolving
borrowings), (b) to the acquisition of a controlling interest in another
business, the making of a capital expenditure or the acquisition of other
long-term assets, in each case, in Permitted Businesses or (c) to an Investment
in Additional Assets; PROVIDED, that the Company will have complied with clause
(c) 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 such Net Proceeds, the Company may temporarily reduce
Indebtedness under any Credit Facility or otherwise invest such Net Proceeds in
any manner that is not prohibited by this Senior Note Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph shall be deemed to constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $20.0 million,
the Company shall be required to make an offer to all Holders of Senior Notes
and all holders of other Indebtedness that ranks PARI PASSU with the Senior
Notes containing provisions similar to those set forth in this Senior Note
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets (a "SENIOR ASSET SALE OFFER") to purchase the maximum principal
amount of Senior Notes and such other Indebtedness that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of purchase, in accordance with the procedures set
forth in this Senior Note Indenture and such other Indebtedness. To the extent
that any Excess Proceeds remain after consummation of a Senior Asset Sale Offer,
the Company may use any remaining Excess Proceeds for any purpose not otherwise
prohibited by this Senior Note Indenture. If the aggregate principal amount of
Senior Notes and such other Indebtedness tendered into such Senior Asset Sale
Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Senior Note Trustee shall select the Senior Notes and such other Indebtedness to
be purchased on a pro rata basis. Upon completion of such offer to purchase,
the amount of Excess Proceeds shall be reset at zero.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate of any such Person (each of the foregoing, an "AFFILIATE
TRANSACTION"), unless (i) 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 (ii) the Company delivers to
the Senior Note Trustee (a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, a resolution of its Board of Directors set forth
49
in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and that such Affiliate Transaction has been
approved by a majority of the disinterested members of its Board of Directors
and (b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $25.0
million, an opinion as to the fairness to the Holders of such Affiliate
Transaction from a financial point of view issued by an investment banking
firm (or, if an investment banking firm is generally not qualified to give
such an opinion, by an appraisal firm) of national standing; PROVIDED that
none of the following shall be deemed to be Affiliate Transactions: (1) any
employment, severance or termination agreement entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such Restricted
Subsidiary, as the case may be, (2) transactions between or among the Company
and/or its Restricted Subsidiaries that are Guarantors, (3) transactions
between or among the Company or its Restricted Subsidiaries that are
Guarantors with its Restricted Subsidiaries that are not Guarantors, FTB
Group 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) of the Company, (5) Restricted Payments that are
permitted by and Investments that are not prohibited by Section 4.07 hereof,
(6) fees and compensation paid to members of the Board of Directors of the
Company and of its Restricted Subsidiaries in their capacity as such, to the
extent such fees and compensation are reasonable and customary, (7) advances
to employees for moving, entertainment and travel expenses, drawing accounts
and similar expenditures in the ordinary course of business and consistent
with past practices, (8) 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, shall not be deemed to be
Affiliate Transactions and (9) transactions effected as part of a Qualified
Securitization Transaction.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective 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
Senior Note Indentures and the Senior 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 Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer
50
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 Senior Notes.
SECTION 4.15. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of Senior
Notes will have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Senior 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 thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "CHANGE OF CONTROL PAYMENT"). Within fifteen days following
any Change of Control, the Company will mail a notice to each Holder describing
the transaction or transactions that constitute the Change of Control and
offering to repurchase Senior 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 Senior Note Indenture and described in such notice.
The Company will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Senior Notes as a result of a Change of Control.
(b) On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment all Senior Notes or portions thereof 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 Senior
Notes or portions thereof so tendered and (3) deliver or cause to be delivered
to the Senior Note Trustee the Senior Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of Senior Notes or
portions thereof being purchased by the Company. The Paying Agent will promptly
mail to each Holder of Senior Notes so tendered the Change of Control Payment
for such Senior Notes, and the Senior Note Trustee will promptly authenticate
and mail (or cause to be transferred by book entry) to each Holder a new Senior
Note equal in principal amount to any unpurchased portion of the Senior Notes
surrendered, if any; PROVIDED that each such new Senior Note will be in a
principal amount of $1,000 or an integral multiple thereof. 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 Change of Control provisions described above will be applicable
whether or not any other provisions of this Senior Note Indenture are
applicable. Except as described above with respect to a Change of Control, this
Senior Note Indenture does not contain provisions that permit the Holders of the
Senior Notes to require that the Company repurchase or redeem the Senior Notes
in the event of a takeover, recapitalization or similar transaction.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will 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 Senior
Note Indenture applicable to a Change of Control Offer made by the Company and
purchases all Senior Notes validly tendered and not withdrawn under such Change
of Control Offer.
SECTION 4.16. ADDITIONAL SENIOR SUBSIDIARY GUARANTEES.
If the Company or any of its Domestic Subsidiaries (i) acquires or creates
any Domestic Subsidiary after the date of this Senior Note Indenture that is not
a Guarantor or (ii) causes or permits any Foreign Subsidiary that is not a
Guarantor to, directly or indirectly, guarantee the payment of any Indebtedness
of the Company or any Restricted Subsidiary ("OTHER INDEBTEDNESS") then, in each
case the Company shall cause such Subsidiary to simultaneously execute and
deliver a supplemental indenture in form and substance
51
substantially similar to Exhibit F hereto pursuant to which it will become a
Guarantor under this Senior Note Indenture; PROVIDED, HOWEVER, that if such
Other Indebtedness is (i) Indebtedness that is ranked PARI PASSU in right of
payment with the Senior Notes or such Subsidiary's Guarantee of the Senior
Notes, as the case may be, such Subsidiary's Guarantee of the Senior Notes
shall be PARI PASSU in right of payment with such Subsidiary's guarantee of
the Other Indebtedness; or (ii) subordinated Indebtedness, such Subsidiary's
Guarantee of the Senior Notes shall be senior in right of payment to the
guarantee of Other Indebtedness (which guarantee of such subordinated
Indebtedness shall provide that the guarantee is subordinated to such
Subsidiary's Guarantee of the Senior Notes to the same extent and in the same
manner as the Other Indebtedness is subordinated to the Senior Notes or such
Subsidiary's Guarantee of the Senior Notes, as the case may be).
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, whether by way of interest, fee or otherwise, to any Holder of
any Senior Notes for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Senior Note Indenture or the Senior Notes
unless such consideration is offered to be paid or is paid to all Holders of the
Senior 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 may enter into a sale and leaseback transaction if (i) the Company
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
and (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 Senior
Note Trustee) of the property that is the subject of such sale and leaseback
transaction and (iii) the transfer of assets in such 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. CERTAIN COVENANTS TO BE SUSPENDED UNDER CERTAIN CONDITIONS.
The covenants set forth in Section 4.01 through Section 4.18, inclusive, of
this Senior Note 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 Senior 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"),
except subsequent to a Change of Control of the Company, and (ii) no Default or
Event of Default shall have occurred and be continuing, the Company and its
Subsidiaries will not be subject to the provisions of this Senior Note Indenture
described in Sections 4.07 through 4.11, inclusive, and Section 4.18,
(collectively, the "SUSPENDED COVENANTS"). In the event that the Company is not
subject to the Suspended Covenants for any period of time as a result of the
preceding sentence (a "SUSPENSION PERIOD") and, subsequently, one or both Rating
Agencies withdraws its ratings or downgrades the ratings assigned to the Senior
Notes below the required Investment Grade Ratings, then, from and after the date
of such withdrawal or downgrade, the Company and its Subsidiaries will again be
subject to the Suspended Covenants and compliance with the Suspended Covenants
with respect to Restricted Payments made after the time of such withdrawal or
downgrade will be calculated in accordance with the terms of Section 4.07 as if
such covenant had been in effect during the entire period of time from the date
of this Senior Note Indenture. Notwithstanding any other provision of this
Senior Note Indenture, the continued existence, after the date of
52
such withdrawal or downgrade, of facts and circumstances that were incurred
or otherwise came into being during a Suspension Period shall not constitute
a breach of any covenant set forth in this Senior Note Indenture or a Default
or Event of Default hereunder.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company shall not, directly or indirectly, consolidate or merge with or
into (whether or not the Company is the surviving corporation), or sell, assign,
transfer, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (i) the Company is the surviving corporation 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 is a corporation organized or existing under the laws of the
United States, any state thereof 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 Senior Registration Rights Agreement, the Senior Notes and
this Senior Note Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Senior Note Trustee; (iii) immediately before and
after such transaction no Default or Event of Default shall have occurred; and
(iv) except in the case of a merger of the Company with or into a Subsidiary,
the Company or 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, immediately after
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, (A) 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 entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made would, immediately after giving pro forma effect thereto as if such
transaction 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. The Company may
not, directly or indirectly, lease all or substantially all of its properties or
assets, in one or more related transactions, to any other Person. The
provisions of this Section 5.01 will not be applicable 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 Senior Note 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 Senior Note 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 Senior Notes except in
the case of a sale of all of the Company's assets that meets the requirements of
Section 5.01 hereof.
53
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(a) the Company defaults in the payment when due of interest on, or
Liquidated Damages, if any, with respect to, the Senior Notes and such default
continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase) or
otherwise;
(c) the Company or any of its Restricted Subsidiaries fails to comply with
the provisions of Section 5.01;
(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 observe or perform any other covenant, representation, warranty
or other agreement in this Senior Note Indenture or the Senior Notes;
(f) 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
Senior Note Indenture, which default (a) is caused by a failure to pay principal
of or premium, if any, or interest on such Indebtedness prior to the expiration
of the grace period provided in such Indebtedness on the date of such default (a
"PAYMENT DEFAULT") or (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 $20.0 million or more;
(g) the Company or any of its Restricted Subsidiaries fails to pay final
judgments aggregating in excess of $20.0 million (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,
54
(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 Senior Note Indenture, any Senior
Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall
deny or disaffirm its obligations under its Senior Subsidiary Guarantee.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in clause
(g) or (h) of Section 6.01 hereof with respect to the Company, any Significant
Subsidiary that is a Restricted Subsidiary or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary)
occurs and is continuing, the Senior Note Trustee or the Holders of at least 25%
in principal amount of the then outstanding Senior Notes may declare all the
Senior Notes to be due and payable immediately. Upon any such declaration, the
Senior Notes shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (g) or (h) 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
Senior Notes shall be due and payable without further action or notice. Holders
of the Senior Notes may not enforce this Senior Note Indenture or the Senior
Notes except as provided in this Senior Note 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 Senior Notes pursuant to
the optional redemption provisions of this Senior Note Indenture, an equivalent
premium shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Senior Notes.
55
The Company is required to deliver to the Senior Note Trustee annually a
statement regarding compliance with this Senior Note Indenture, and the Company
is required upon becoming aware of any Default or Event of Default, to deliver
to the Senior Note 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 Senior Note Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Liquidated Damages, if any, on the Senior Notes or to
enforce the performance of any provision of the Senior Notes or this Senior Note
Indenture.
The Senior Note Trustee may maintain a proceeding even if it does not
possess any of the Senior Notes or does not produce any of them in the
proceeding. A delay or omission by the Senior Note Trustee or any Holder of a
Senior 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 Senior Notes
then outstanding by notice to the Senior Note Trustee may on behalf of the
Holders of all of the Senior Notes waive any existing Default or Event of
Default and its consequences under this Senior Note Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Senior 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 Senior Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Senior Note Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.06. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Senior
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Senior Note Trustee or exercising any
trust or power conferred on it. However, the Senior Note Trustee may refuse to
follow any direction that conflicts with law or this Senior Note Indenture that
the Senior Note Trustee determines may be unduly prejudicial to the rights of
other Holders of Senior Notes or that may involve the Senior Note Trustee in
personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Senior Note may pursue a remedy with respect to this Senior
Note Indenture or the Senior Notes only if:
(a) the Holder of a Senior Note gives to the Senior Note Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Senior Notes make a written request to the Senior Note Trustee to
pursue the remedy;
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(c) such Holder of a Senior Note or Holders of Senior Notes offer and, if
requested, provide to the Senior Note Trustee indemnity satisfactory to the
Senior Note Trustee against any loss, liability or expense;
(d) the Senior Note 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 Senior Notes do not give the Senior Note Trustee
a direction inconsistent with the request.
A Holder of a Senior Note may not use this Senior Note Indenture to
prejudice the rights of another Holder of a Senior Note or to obtain a
preference or priority over another Holder of a Senior Note.
SECTION 6.07. RIGHTS OF HOLDERS OF SENIOR NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Senior Note Indenture, the
right of any Holder of a Senior Note to receive payment of principal, premium
and Liquidated Damages, if any, and interest on the Senior Note, on or after the
respective due dates expressed in the Senior 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 SENIOR NOTE TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Senior Note Trustee is authorized to recover judgment in its own
name and as Senior Note 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 Senior 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 Senior Note
Trustee, its agents and counsel.
SECTION 6.09. SENIOR NOTE TRUSTEE MAY FILE PROOFS OF CLAIM.
The Senior Note 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 Senior Note Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Senior Note Trustee,
its agents and counsel) and the Holders of the Senior Notes allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Senior 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 Senior Note
Trustee, and in the event that the Senior Note Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Senior Note
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Senior Note Trustee, its agents and counsel,
and any other amounts due the Senior Note Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Senior Note Trustee, its agents and counsel, and any other
amounts due the Senior Note 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 Senior Note Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
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reorganization, arrangement, adjustment or composition affecting the Senior
Notes or the rights of any Holder, or to authorize the Senior Note Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Senior Note Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
FIRST: to the Senior Note 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 Senior Note Trustee and the costs and expenses of collection;
SECOND: to Holders of Senior Notes for amounts due and unpaid on the
Senior 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 Senior Notes for principal, premium and
Liquidated Damages, if any and interest, respectively; and
THIRD: to the Company.
The Senior Note Trustee may fix a record date and payment date for any
payment to Holders of Senior 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 Senior
Note Indenture or in any suit against the Senior Note Trustee for any action
taken or omitted by it as a Senior Note 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 Senior Note Trustee, a suit by a Holder of a Senior Note pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Senior Notes.
ARTICLE 7
SENIOR NOTE TRUSTEE
SECTION 7.01. DUTIES OF SENIOR NOTE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Senior Note
Trustee shall exercise such of the rights and powers vested in it by this Senior
Note 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 Senior Note Trustee shall be determined solely
by the express provisions of this Senior Note Indenture and the Senior Note
Trustee need perform only those duties that are specifically set forth in
this Senior Note Indenture and no others, and no implied covenants or
obligations shall be read into this Senior Note Indenture against the
Senior Note Trustee; and
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(ii) in the absence of bad faith on its part, the Senior Note 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 Senior Note Trustee and conforming to the
requirements of this Senior Note Indenture, but in the case of any such
certificates of opinions which by any provision hereof are specifically
required to be furnished to the Senior Note Trustee, the Senior Note
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Senior Note Indenture (but
need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Senior Note 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 Senior Note Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved
that the Senior Note Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Senior Note 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
Senior Note Indenture that in any way relates to the Senior Note Trustee is
subject to paragraphs (a), (b), (c), (e) and (f) of this Section and Section
7.02.
(e) No provision of this Senior Note Indenture shall require the Senior
Note Trustee to expend or risk its own funds or incur any liability. The Senior
Note Trustee shall be under no obligation to exercise any of its rights and
powers under this Senior Note Indenture at the request of any Holders, unless
such Holder shall have offered to the Senior Note Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The Senior Note Trustee shall not be liable for interest on any money
received by it except as the Senior Note Trustee may agree in writing with the
Company. Money held in trust by the Senior Note Trustee need not be segregated
from other funds except to the extent required by law.
SECTION 7.02. RIGHTS OF SENIOR NOTE TRUSTEE.
(a) The Senior Note 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 Senior Note Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Senior Note Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Senior
Note 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
Senior Note 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 Senior Note 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.
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(d) The Senior Note 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 Senior Note Indenture.
(e) Unless otherwise specifically provided in this Senior Note 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 Senior Note Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Senior Note Indenture at the
request or direction of any of the Holders unless such Holders shall have
offered to the Senior Note Trustee 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.
SECTION 7.03. INDIVIDUAL RIGHTS OF SENIOR NOTE TRUSTEE.
The Senior Note Trustee in its individual or any other capacity may become
the owner or pledgee of Senior 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
Senior Note Trustee. The Senior Note Trustee is also subject to Sections 7.10
and 7.11 hereof.
SECTION 7.04. SENIOR NOTE TRUSTEE'S DISCLAIMER.
The Senior Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Senior Note Indenture or
the Senior Notes, it shall not be accountable for the Company's use of the
proceeds from the Senior Notes or any money paid to the Company or upon the
Company's direction under any provision of this Senior Note Indenture, it shall
not be responsible for the use or application of any money received by any
Paying Agent other than the Senior Note Trustee, and it shall not be responsible
for any statement or recital herein or any statement in the Senior Notes or any
other document in connection with the sale of the Senior Notes or pursuant to
this Senior Note 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 Senior Note Trustee, the Senior
Note Trustee shall mail to Holders of Senior Notes a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Senior Note, the Senior Note Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders of the Senior
Notes.
SECTION 7.06. REPORTS BY SENIOR NOTE TRUSTEE TO HOLDERS OF THE SENIOR NOTES.
Within 60 days after each August 1 beginning with the August 1 following
the date of this Senior Note Indenture, and for so long as Senior Notes remain
outstanding, the Senior Note Trustee shall mail to the Holders of the Senior
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 Senior Note Trustee also shall comply with TIA Section
313(b)(2). The Senior Note 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 Senior
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Senior Notes are listed in accordance
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with TIA Section 313(d). The Company shall promptly notify the Senior Note
Trustee when the Senior 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 Senior Note Trustee from
time to time such compensation as agreed upon in writing for its acceptance of
this Senior Note Indenture and services hereunder. The Senior Note Trustee's
compensation shall not be limited by any law on compensation of a Senior Note
Trustee of an express trust. The Company and the Guarantors shall reimburse the
Senior Note Trustee promptly upon request for all 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 Senior Note Trustee's agents and counsel.
The Company and the Guarantors shall indemnify the Senior Note Trustee
against any and all losses, liabilities, claims, damages or expenses (including
taxes other than taxes based upon the income of the Senior Note Trustee)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Senior Note Indenture, including the
costs and expenses of enforcing this Senior Note 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 Senior Note Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Senior Note 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 Senior Note
Trustee shall cooperate in the defense. The Senior Note 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 Senior Note Indenture.
To secure the Company's and the Guarantors' payment obligations in this
Section, the Senior Note Trustee shall have a Lien prior to the Senior Notes on
all money or property held or collected by the Senior Note Trustee, except that
held in trust to pay principal and interest on particular Senior Notes. Such
Lien shall survive the satisfaction and discharge of this Senior Note Indenture.
When the Senior Note 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 Senior Note Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF SENIOR NOTE TRUSTEE.
A resignation or removal of the Senior Note Trustee and appointment of a
successor Senior Note Trustee shall become effective only upon the successor
Senior Note Trustee's acceptance of appointment as provided in this Section.
The Senior Note Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of
Senior Notes of a majority in principal amount of the
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then outstanding Senior Notes may remove the Senior Note Trustee by so
notifying the Senior Note Trustee and the Company in writing. The Company
may remove the Senior Note Trustee if:
(a) the Senior Note Trustee fails to comply with Section 7.10 hereof;
(b) the Senior Note Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Senior Note Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the Senior Note Trustee
or its property; or
(d) the Senior Note Trustee becomes incapable of acting.
If the Senior Note Trustee resigns or is removed or if a vacancy exists in
the office of Senior Note Trustee for any reason, the Company shall promptly
appoint a successor Senior Note Trustee. Within one year after the successor
Senior Note Trustee takes office, the Holders of a majority in principal amount
of the then outstanding Senior Notes may appoint a successor Senior Note Trustee
to replace the successor Senior Note Trustee appointed by the Company.
If a successor Senior Note Trustee does not take office within 60 days
after the retiring Senior Note Trustee resigns or is removed, the retiring
Senior Note Trustee, the Company, or the Holders of Senior Notes of at least 10%
in principal amount of the then outstanding Senior Notes may petition at the
expense of the Company any court of competent jurisdiction for the appointment
of a successor Senior Note Trustee.
If the Senior Note Trustee, after written request by any Holder of a Senior
Note who has been a Holder of a Senior Note for at least six months, fails to
comply with Section 7.10, such Holder of a Senior Note may petition any court of
competent jurisdiction for the removal of the Senior Note Trustee and the
appointment of a successor Senior Note Trustee.
A successor Senior Note Trustee shall deliver a written acceptance of its
appointment to the retiring Senior Note Trustee and to the Company. Thereupon,
the resignation or removal of the retiring Senior Note Trustee shall become
effective, and the successor Senior Note Trustee shall have all the rights,
powers and duties of the Senior Note Trustee under this Senior Note Indenture.
The successor Senior Note Trustee shall mail a notice of its succession to
Holders of the Senior Notes. The retiring Senior Note Trustee shall promptly
transfer all property held by it as Senior Note Trustee to the successor Senior
Note Trustee, PROVIDED all sums owing to the Senior Note 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 Senior Note
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Senior Note Trustee.
SECTION 7.09. SUCCESSOR SENIOR NOTE TRUSTEE BY MERGER, ETC.
If the Senior Note 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 Senior Note Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Senior Note 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 Senior Note Trustee power, that is subject to supervision or
examination by federal
62
or state authorities and that has a combined capital and surplus of at least
$50.0 million as set forth in its most recent published annual report of
condition.
This Senior Note Indenture shall always have a Senior Note Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Senior
Note Trustee is subject to TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Senior Note Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Senior Note Trustee who
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
SECTION 7.12. SENIOR NOTE TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE
COMPANY.
Any application by the Senior Note Trustee for written instructions from
the Company may, at the option of the Senior Note Trustee, set forth in writing
any action proposed to be taken or omitted by the Senior Note Trustee under this
Senior Note Indenture and the date on and/or after which such action shall be
taken or such omission shall be effective. The Senior Note Trustee shall not be
liable for any action taken by, or omission of, the Senior Note 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 Senior Note 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 Senior 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 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 Senior Notes and
to have each Guarantor's obligation discharged with respect to its Senior
Subsidiary Guarantee on the date the conditions set forth below are satisfied
(hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Senior Notes, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Senior Note Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Senior Notes
and this Senior Note Indenture (and the Senior Note 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
Senior 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, premium, if any, and interest and Liquidated Damages, if any, on
such Senior Notes when such
63
payments are due, (b) the Company's obligations with respect to such Senior
Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers,
trusts, duties and immunities of the Senior Note Trustee hereunder and the
Company's 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 Guarantor 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 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16 and 4.17 hereof with respect to the
outstanding Senior Notes on and after the date the conditions set forth in
Section 8.04 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Senior
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 Senior Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Senior Notes, the Company and each Guarantor 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
Senior Note Indenture and such Senior 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 Senior Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Senior Note Trustee, in
trust, for the benefit of the Holders, cash in United States dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Senior Notes on the stated date
for payment thereof or on the applicable redemption date, as the case may be,
and the Company must specify whether the Senior 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 Senior Note Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Senior Note 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 Senior Note Indenture,
there has been a change in the applicable 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 Senior Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
64
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Senior Note Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Senior Note Trustee confirming that
the Holders of the outstanding Senior Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(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 Senior Notes pursuant to this Article 8 concurrently
with such incurrence) or insofar as Sections 6.01(g) or 6.01(h) 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 Senior Note 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 Senior Note Trustee an Opinion
of Counsel (which may be subject to customary exceptions) to the effect that
after the 91st day following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(g) the Company shall have delivered to the Senior Note Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any creditors of
the Company or others; and
(h) the Company shall have delivered to the Senior Note Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or 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 Senior Note
Trustee (or other qualifying Senior Note Trustee, collectively for purposes of
this Section 8.05, the "SENIOR NOTE TRUSTEE") pursuant to Section 8.04 hereof in
respect of the outstanding Senior Notes shall be held in trust and applied by
the Senior Note Trustee, in accordance with the provisions of such Senior Notes
and this Senior Note Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Senior Note
Trustee may determine, to the Holders of such Senior 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 Senior Note
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 Senior Notes.
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Anything in this Article 8 to the contrary notwithstanding, the Senior Note
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 Senior Note 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 Senior Note 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 Senior 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 Senior Note
shall thereafter, as a secured creditor, look only to the Company for payment
thereof, and all liability of the Senior Note Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as Senior Note
Trustee thereof, shall thereupon cease; provided, however, that the Senior Note
Trustee or such Paying Agent, before being required to make any such repayment,
may at the 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 will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Senior Note 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 Senior
Note Indenture and the Senior 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 Senior Note 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 Senior Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Senior Notes to receive such payment from the money held by the Senior Note
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SENIOR NOTES.
Notwithstanding Section 9.02 of this Senior Note Indenture, the Company,
the Guarantors and the Senior Note Trustee may amend or supplement this Senior
Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes without the
consent of any Holder of a Senior Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Senior Notes in addition to or in place
of certificated Senior Notes or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
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(c) to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the Senior Notes by a successor to the Company or
a Guarantor pursuant to Article 5 or Article 10 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Senior Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Senior Note;
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Senior Note Indenture under the TIA; or
(f) to allow any Guarantor to execute a supplemental Senior Note Indenture
and/or a Senior Subsidiary Guarantee with respect to the Senior 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 Senior
Note Indenture, and upon receipt by the Senior Note Trustee of the documents
described in Section 7.02 hereof, the Senior Note Trustee shall join with the
Company and the Guarantors in the execution of any amended or supplemental
Senior Note Indenture authorized or permitted by the terms of this Senior Note
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Senior Note Trustee shall not be obligated to
enter into such amended or supplemental Senior Note Indenture that affects its
own rights, duties or immunities under this Senior Note Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SENIOR NOTES.
Except as provided below in this Section 9.02, the Company and the Senior
Note Trustee may amend or supplement this Senior Note Indenture (including
Sections 3.09, 4.10 and 4.15 hereof), the Senior Subsidiary Guarantees and the
Senior Notes may be amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the Senior Notes then outstanding
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Senior 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 Senior Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Senior Note Indenture, the Senior Subsidiary
Guarantees or the Senior Notes may be waived with the consent of the Holders of
a majority in principal amount of the then outstanding Senior Notes voting as a
single class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Senior Notes). Section 2.08 hereof
shall determine which Senior 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 Senior
Note Indenture, and upon the filing with the Senior Note Trustee of evidence
satisfactory to the Senior Note Trustee of the consent of the Holders of Senior
Notes as aforesaid, and upon receipt by the Senior Note Trustee of the documents
described in Section 7.02 hereof, the Senior Note Trustee shall join with the
Company in the execution of such amended or supplemental Senior Note Indenture
unless such amended or supplemental Senior Note Indenture directly affects the
Senior Note Trustee's own rights, duties or immunities under this Senior Note
Indenture or otherwise, in which case the Senior Note Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental Senior Note Indenture.
It shall not be necessary for the consent of the Holders of Senior Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
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After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Senior 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 Senior Note Indenture or waiver. Subject to Sections 6.04 and 6.07
hereof, the Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding voting as a single class may waive compliance in a
particular instance by the Company with any provision of this Senior Note
Indenture or the Senior Notes. However, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Senior Notes held by a non-consenting Holder):
(a) reduce the principal amount of Senior Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Senior
Note or alter or waive any of the provisions with respect to the redemption of
the Senior 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 Senior 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 Senior Notes
(except a rescission of acceleration of the Senior Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding Senior
Notes and a waiver of the payment default that resulted from such acceleration);
(e) make any Senior Note payable in money other than that stated in the
Senior Notes;
(f) make any change in the provisions of this Senior Note Indenture
relating to waivers of past Defaults or the rights of Holders of Senior Notes to
receive payments of principal of or premium, interest or Liquidated Damages, if
any, on the Senior Notes;
(g) waive a redemption payment with respect to any Senior Note (other than
a payment required pursuant to Section 4.10 or 4.15);
(h) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions; or
(i) release any Guarantor from any of its obligations under its Senior
Subsidiary Guarantee or this Senior Note Indenture, except in accordance with
the terms of this Senior Note Indenture.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Senior Note Indenture or the Senior
Notes shall be set forth in a amended or supplemental Senior Note 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 Senior Note is a continuing consent by the Holder of a Senior
Note and every subsequent Holder of a Senior Note or portion of a Senior Note
that evidences the same debt as the consenting Holder's Senior Note, even if
notation of the consent is not made on any Senior Note. However, any such
Holder of a Senior Note or
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subsequent Holder of a Senior Note may revoke the consent as to its Senior
Note if the Senior Note 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 SENIOR NOTES.
The Senior Note Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Senior Note thereafter authenticated.
The Company in exchange for all Senior Notes may issue and the Senior Note
Trustee shall, upon receipt of an Authentication Order, authenticate new Senior
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Senior Note shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. SENIOR NOTE TRUSTEE TO SIGN AMENDMENTS, ETC.
The Senior Note Trustee shall sign any amended or supplemental Senior Note
Indenture authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities of the
Senior Note Trustee. The Company may not sign an amendment or supplemental
Senior Note Indenture until the Board of Directors approves it. In executing
any amended or supplemental Senior Note Indenture, the Senior Note 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 or supplemental Senior Note Indenture is
authorized or permitted by this Senior Note Indenture.
ARTICLE 10
SENIOR SUBSIDIARY 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 Senior Note
authenticated and delivered by the Senior Note Trustee and to the Senior Note
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Senior Note Indenture, the Senior Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal of
and interest on the Senior 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 Senior Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the Senior Note Trustee
hereunder or thereunder will 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 Senior 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.
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
Senior Notes or this Senior Note Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Senior Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the
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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 Senior Subsidiary Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Senior Notes and this Senior Note Indenture.
If any Holder or the Senior Note Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, Senior Note
Trustee, liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Senior Note Trustee
or such Holder, this Senior Subsidiary 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 Senior Note 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 Senior Subsidiary 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 Senior Subsidiary Guarantee.
The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Senior Subsidiary Guarantee.
SECTION 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Senior Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Senior Subsidiary
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 Senior Subsidiary Guarantee. To effectuate the
foregoing intention, the Senior Note Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of such Guarantor under its Senior
Subsidiary 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 Senior Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.
SECTION 10.03. EXECUTION AND DELIVERY OF SENIOR SUBSIDIARY GUARANTEE.
To evidence its Senior Subsidiary Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Senior Subsidiary Guarantee
substantially in the form included in Exhibit E shall be endorsed by an Officer
of such Guarantor on each Senior Note authenticated and delivered by the Senior
Note Trustee and that this Senior Note Indenture shall be executed on behalf of
such Guarantor by its President or one of its Vice Presidents.
Each Guarantor hereby agrees that its Senior Subsidiary Guarantee set forth
in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Senior Note a notation of such Senior Subsidiary
Guarantee.
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If an Officer whose signature is on this Senior Note Indenture or on the
Senior Subsidiary Guarantee no longer holds that office at the time the Senior
Note Trustee authenticates the Senior Note on which a Senior Subsidiary
Guarantee is endorsed, the Senior Subsidiary Guarantee shall be valid
nevertheless.
The delivery of any Senior Note by the Senior Note Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Senior
Subsidiary Guarantee set forth in this Senior Note Indenture on behalf of the
Guarantors.
In the event that the Company creates or acquires any new Subsidiaries
subsequent to the date of this Senior Note Indenture, if required by Section
4.16 hereof, the Company shall cause such Subsidiaries to execute supplemental
Senior Note Indentures to this Senior Note Indenture and Senior Subsidiary
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.
No Guarantor may consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another Person whether or not affiliated
with such Guarantor unless:
(a) subject to Section 10.04 hereof, the Person formed by or surviving any
such consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a
supplemental Senior Note Indenture in form and substance reasonably satisfactory
to the Senior Note Trustee, under the Senior Notes, this Senior Note Indenture,
the Senior Registration Rights Agreement and the Senior Subsidiary Guarantee on
the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(c) the Company would be permitted, immediately after giving effect to
such transaction, 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.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental Senior Note Indenture,
executed and delivered to the Senior Note Trustee and satisfactory in form to
the Senior Note Trustee, of the Senior Subsidiary Guarantee endorsed upon the
Senior Notes and the due and punctual performance of all of the covenants and
conditions of this Senior Note 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 Senior Subsidiary
Guarantees to be endorsed upon all of the Senior Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Senior Note Trustee. All the Senior Subsidiary Guarantees so issued shall in
all respects have the same legal rank and benefit under this Senior Note
Indenture as the Senior Subsidiary Guarantees theretofore and thereafter issued
in accordance with the terms of this Senior Note Indenture as though all of such
Senior Subsidiary Guarantees had been issued at the date of the execution
hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses
(a) and (b) above, nothing contained in this Senior Note Indenture or in any of
the Senior 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.
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SECTION 10.05. RELEASES FOLLOWING SALE OF ASSETS.
In the event of (a) a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, (b) a sale or other
disposition of all of the capital stock of any Guarantor or (c) the designation
of a Guarantor as an Unrestricted Subsidiary in accordance with the terms of
this Senior Note 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) will be released and relieved of any obligations under its Senior
Subsidiary Guarantee; provided that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Senior Note Indenture, including without limitation Section 4.10 hereof. Upon
delivery by the Company to the Senior Note 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 Senior
Note Indenture, including without limitation Section 4.10 hereof, the Senior
Note Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Senior
Subsidiary Guarantee.
Any Guarantor not released from its obligations under its Senior Subsidiary
Guarantee shall remain liable for the full amount of principal of and interest
on the Senior Notes and for the other obligations of any Guarantor under this
Senior Note Indenture as provided in this Article 10.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Senior Note Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company, any Guarantor or the Senior
Note Trustee to the others is duly given if in writing and delivered in Person
or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address.
If to the Company 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
333 West Wacker Drive, Suite 2100
Chicago, Illinois 60606
Telecopier No.: (312) 407-0411
Attention: Brian W. Duwe
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If to the Senior Note Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, NY 10286
Telecopier No.: (212) 815-5915
Attention: Corporate Trust Administration
The Company, any Guarantor or the Senior Note 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 Senior Note Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF SENIOR NOTES WITH OTHER HOLDERS OF
SENIOR NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Senior Note Indenture or the Senior
Notes. The Company, the Senior Note Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Senior Note Trustee
to take any action under this Senior Note Indenture, the Company shall furnish
to the Senior Note Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Senior Note Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Senior Note
Indenture relating to the proposed action have been satisfied; and
(b) except with respect to the initial issuance of the Senior Notes, an
Opinion of Counsel in form and substance reasonably satisfactory to the Senior
Note 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.
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SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Senior Note 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 11.06. RULES BY SENIOR NOTE TRUSTEE AND AGENTS.
The Senior Note 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 11.07. 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 Senior Notes, the
Senior Subsidiary Guarantees, this Senior Note Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Senior Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Senior
Notes.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SENIOR NOTE INDENTURE, THE SENIOR NOTES AND THE SENIOR SUBSIDIARY
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 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Senior Note Indenture may not be used to interpret any other Senior
Note Indenture, loan or debt agreement of the Company or its Subsidiaries or of
any other Person. Any such Senior Note Indenture, loan or debt agreement may
not be used to interpret this Senior Note Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Senior Note Indenture and the Senior
Notes shall bind its successors. All agreements of the Senior Note Trustee in
this Senior Note Indenture shall bind its successors.
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SECTION 11.11. SEVERABILITY.
In case any provision in this Senior Note Indenture or in the Senior Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Senior Note Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Senior Note Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Senior Note Indenture
and shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
75
SIGNATURES
Dated as of August 10, 1998 BALL CORPORATION
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Treasurer
BALL AEROSPACE AND TECHNOLOGIES
CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL ASIA PACIFIC LIMITED
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL GLASS CONTAINER CORPORATION
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL HOLDINGS CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL METAL BEVERAGE CONTAINER CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL METAL FOOD CONTAINER CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL METAL PACKAGING SALES CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL PACKAGING CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL PLASTIC CONTAINER CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL TECHNOLOGIES HOLDING CORP.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BALL TECHNOLOGY SERVICES CORPORATION
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BG HOLDINGS I, INC.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
BG HOLDINGS II, INC.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
EFRATOM HOLDING, INC.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
LATAS DE ALUMINIO REYNOLDS, INC.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
RCAL CANS, INC.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
RIND CANS, INC.
By: /s/ Douglas E. Poling
------------------------------
Name: Douglas E. Poling
Title: Vice President
THE BANK OF NEW YORK,
as Senior Note Trustee
By: /s/ Walter N. Gitlin
------------------------------
Name: WALTER N. GITLIN
Title: Vice President
EXHIBIT A1
(FACE OF SENIOR NOTE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[INSERT THE GLOBAL SENIOR NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE SENIOR NOTE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE SENIOR NOTE INDENTURE]
CUSIP/CINS
7 3/4% [Series A] [Series B] Senior Notes due 2006
No. $
---------- ----------
BALL CORPORATION
promises to pay to ____________ or registered assigns, the principal sum of
________________________ Dollars on August 1, 2006.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
BALL CORPORATION
By:
--------------------------
Name:
Title:
This is one of the [Global]
Senior Notes referred to in the
within-mentioned Senior Note Indenture:
Dated: August 10, 1998
THE BANK OF NEW YORK,
as Senior Note Trustee
By:
------------------------------
Name:
Title:
A1-1
(BACK OF SENIOR NOTE)
7 3/4% [Series A] [Series B] Senior Notes due 2006
Capitalized terms used herein shall have the meanings assigned to them in the
Senior Note 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 Senior Note at 7 3/4%
per annum from August 10, 1998 until maturity and shall pay the Liquidated
Damages payable pursuant to Section 5 of the Senior Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on February 1 and August 1 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"). Interest on the Senior 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 Senior 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 February
1, 1999. 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 Senior 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 Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Senior Notes at the close of business on the January 15 or
July 15 next preceding the Interest Payment Date, even if such Senior Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Senior Note Indenture with respect to
defaulted interest. Principal, premium, if any, and interest and Liquidated
Damages on the Senior Notes will be payable at the office or agency of the
Company maintained for such purpose within the City and State of New York or, at
the option of the Company, payment of interest and Liquidated Damages 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 will 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 Senior
Note Trustee under the Senior Note 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. SENIOR NOTE INDENTURE. The Company issued the Senior Notes under an Senior
Note Indenture dated as of August 10, 1998 ("SENIOR NOTE INDENTURE") between the
Company and the Senior Note Trustee. The terms of the Senior Notes include
those stated in the Senior Note Indenture and those made part of the Senior Note
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb). The Senior Notes are subject to all such terms,
and Holders are referred to the Senior Note Indenture and such Act for a
statement of such terms. To the extent any provision of this Senior Note
conflicts with the express provisions of the Senior Note Indenture, the
provisions of the Senior Note Indenture shall govern and be controlling. The
Senior Notes are obligations of the Company limited to $300.0 million in
aggregate principal amount.
A1-2
5. OPTIONAL REDEMPTION.
(a) The Senior Notes will be subject to redemption at any time at the
option of the Company, in whole but not in part, upon not less than 30 nor
more than 60 days' notice.
(b) The Senior Notes will be redeemable at a redemption price equal to
100% of the principal amount thereof plus the applicable Senior Make-Whole
Premium, plus, to the extent not included in the Senior Make-Whole Premium,
accrued and unpaid interest and Liquidated Damages, if any, to the date of
redemption. For purposes of the foregoing, "SENIOR MAKE-WHOLE PREMIUM"
means, with respect to a Senior Note, an amount equal to the excess, if
any, of (i) the aggregate present value as of the date of such redemption
of each dollar of principal of such Senior Note being redeemed and the
amount of interest (exclusive of interest accrued to the date of
redemption) that would have been payable in respect of such dollar if such
redemption had not been made, determined by discounting, on a semiannual
basis, such principal and interest at a rate equal to the sum of the
Treasury Yield (determined on the Business Day immediately preceding the
date of such redemption) plus 0.5% per annum, from the respective dates on
which such principal and interest would have been payable if such
redemption had not been made, over (ii) the aggregate principal amount of
such Senior Note being redeemed.
(c) Any redemption pursuant to this Paragraph 5 shall be made pursuant to
the provisions of Article 3 of the Senior Note Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 3.09, 4.10 and 4.15
of the Senior Note Indenture, the Company shall not be required to make
mandatory redemption payments with respect to the Senior Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a 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 Senior Notes at
a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to
the date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within 15 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 Senior Note Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales
and the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall commence an offer to all Holders of Senior Notes (a "SENIOR
ASSET SALE OFFER") pursuant to Section 3.09 of the Senior Note Indenture to
purchase the maximum principal amount of Senior Notes that may be purchased
out of the Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date fixed for the closing of
such offer, in accordance with the procedures set forth in the Senior Note
Indenture. To the extent that the aggregate amount of Senior Notes
tendered pursuant to a Senior Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for any
purpose not prohibited by the Senior Note Indenture. If the aggregate
principal amount of Senior Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Senior Note Trustee shall select the Senior
Notes to be purchased on a PRO RATA basis. Holders of Senior Notes that
are the subject of an offer to purchase will receive a Senior Asset Sale
Offer from the Company prior to any related purchase date and may elect to
have such Senior Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Senior Notes.
A1-3
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each Holder whose Senior
Notes are to be redeemed at its registered address. Senior Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Senior Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Senior
Notes or portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Senior Notes may be registered and Senior Notes may be exchanged
as provided in the Senior Note Indenture. The Registrar and the Senior Note
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 Senior Note Indenture.
The Company need not exchange or register the transfer of any Senior Note or
portion of a Senior Note selected for redemption, except for the unredeemed
portion of any Senior Note being redeemed in part. Also, the Company need not
exchange or register the transfer of any Senior Notes for a period of 15 days
before a selection of Senior Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Senior Notes voting as a
single class, and any existing default or compliance with any provision of the
Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes voting as a single class. Without the consent
of any Holder of a Senior Note, the Senior Note Indenture, the Senior Subsidiary
Guarantees or the Senior Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Senior Notes
in addition to or in place of certificated Senior Notes, to provide for the
assumption of the Company's or Guarantor's obligations to Holders of the Senior
Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Senior Notes or
that does not adversely affect the legal rights under the Senior Note Indenture
of any such Holder, to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Senior Note Indenture under the
Trust Indenture Act or to allow any Guarantor to execute a supplemental Senior
Note Indenture to the Senior Note Indenture and/or a Senior Subsidiary Guarantee
with respect to the Senior Notes.
13. DEFAULTS AND REMEDIES. An "EVENT OF DEFAULT" occurs if: (i) the Company
defaults in the payment when due of interest on, or Liquidated Damages, if any,
with respect to, the Senior Notes and such default continues for a period of 30
days; (ii) the Company defaults in the payment when due of principal of or
premium, if any, on the Senior Notes when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase) or
otherwise; (iii) the Company or any of its Restricted Subsidiaries fails to
comply with the provisions of Sections 5.01; (iv) the Company or any of its
Restricted Subsidiaries fails to comply for 30 days after notice to the Company
by the Senior Note Trustee with any of the provisions of Sections 4.07, 4.09,
4.10 or 4.15 of the Senior Note Indenture; (v) the Company or any of its
Restricted Subsidiaries fails to observe or perform any other covenant,
representation, warranty or other agreement in the Senior Note Indenture or the
Senior Notes for 60 days after notice to the Company by the Senior Note Trustee;
(vi) a default occurs 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 Senior Note Indenture,
A1-4
which default (a) is caused by a failure to pay principal of or premium, if
any, or interest on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a "PAYMENT
DEFAULT") or (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 $20.0 million
or more; (vii) the Company or any of its Restricted Subsidiaries fails to pay
final judgments aggregating in excess of $20.0 million (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 Senior Note
Indenture, any Senior Subsidiary Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under such Guarantor's
Senior Subsidiary Guarantee.
If any Event of Default occurs and is continuing, the Senior Note Trustee or the
Holders of at least 25% in principal amount of the then outstanding Senior Notes
may declare all the Senior 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, all outstanding Senior Notes will become due and
payable without further action or notice. Holders may not enforce the Senior
Note Indenture or the Senior Notes except as provided in the Senior Note
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Senior Notes may direct the Senior Note Trustee
in its exercise of any trust or power. The Senior Note Trustee may withhold
from Holders of the Senior Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Senior
Notes then outstanding by notice to the Senior Note Trustee may on behalf of the
Holders of all of the Senior Notes waive any existing Default or Event of
Default and its consequences under the Senior Note Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Senior Notes. The Company is required to deliver to the Senior Note Trustee
annually a statement regarding compliance with the Senior Note Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Senior Note Trustee a statement specifying such Default or
Event of Default.
14. SENIOR NOTE TRUSTEE DEALINGS WITH COMPANY. The Senior Note 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 Senior Note Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator or
stockholder, of the Company or any of the Guarantors, as such, shall not have
any liability for any obligations of the Company or such Guarantor under the
Senior Notes, the Senior Subsidiary Guarantees or the Senior Note Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Senior Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Senior Notes.
16. AUTHENTICATION. This Senior Note shall not be valid until authenticated by
the manual signature of the Senior Note Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with
A1-5
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR NOTES AND
RESTRICTED DEFINITIVE SENIOR NOTES. In addition to the rights provided to
Holders of Senior Notes under the Senior Note Indenture, Holders of Restricted
Global Senior Notes and Restricted Definitive Senior Notes shall have all the
rights set forth in the Senior Registration Rights Agreement dated as of August
10, 1998, between the Company and the parties named on the signature pages
thereof (the "SENIOR REGISTRATION RIGHTS AGREEMENT").
19. 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 Senior Notes and the Senior Note 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 Senior Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a
copy of the Senior Note Indenture and/or the Senior Registration Rights
Agreement. Requests may be made to:
Ball Corporation
Colorado Office Center
9300 West 108th Circle
Broomfield, CO 80021-3682
Attention: Chief Financial Officer
A1-6
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
- -------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Senior 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.
A1-7
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Senior Note Indenture, check the box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Senior Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Senior Note 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.
A1-8
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL SENIOR NOTE (1)
The following exchanges of a part of this Global Senior Note for an interest in
another Global Senior Note or for a Definitive Senior Note, or exchanges of a
part of another Global Senior Note or Definitive Senior Note for an interest in
this Global Senior Note, have been made:
Principal Amount Signature of
Amount of of this Global authorized
decrease in Amount of increase Senior Note signatory of
Principal Amount in Principal following such Senior Note
of this Global Amount of this decrease (or Trustee or
Date of Exchange Senior Note Global Senior Note increase) Custodian
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(1) This should be included only if the Senior Note is issued in global form.
A1-9
EXHIBIT A2
(FACE OF REGULATION S TEMPORARY GLOBAL SENIOR NOTE)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SENIOR NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SENIOR NOTES,
ARE AS SPECIFIED IN THE SENIOR NOTE INDENTURE (AS DEFINED HEREIN). NEITHER THE
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SENIOR
NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES IN
DEFINITIVE FORM, THIS SENIOR 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.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE SECURITIES ACT
OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE.
A2-1
CUSIP/CINS
7 3/4% SERIES A SENIOR NOTES DUE 2006
NO. $
---------- ----------
BALL CORPORATION
promises to pay to ____________ or registered assigns, the principal sum of
________________________ Dollars on August 1, 2006.
Interest Payment Dates: February 1, and August 1
Record Dates: January 15 and July 15
BALL CORPORATION
By:
------------------------------------
Name:
Title:
This is one of the [Global]
Senior Notes referred to in the
within-mentioned Senior Note Indenture:
Dated: August 10, 1998
THE BANK OF NEW YORK,
as Senior Note Trustee
By:
-------------------------------
Name:
Title:
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(BACK OF REGULATION S TEMPORARY GLOBAL SENIOR NOTE)
7 3/4% Series A Senior Notes due 2006
Capitalized terms used herein shall have the meanings assigned to them in the
Senior Note 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 Senior Note at 7 3/4%
per annum from August 10, 1998 until maturity and shall pay the Liquidated
Damages payable pursuant to Section 5 of the Senior Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on February 1 and August 1 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"INTEREST PAYMENT DATE"). Interest on the Senior 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 Senior 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 February
1, 1999. 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 Senior 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 Interest will be computed on the basis of a 360-day year of twelve
30-day months.
Until this Regulation S Temporary Global Senior Note is exchanged for one or
more Regulation S Permanent Global Senior Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Senior Note shall in all other respects be
entitled to the same benefits as other Senior Notes under the Senior Note
Indenture.
2. METHOD OF PAYMENT. The Company will pay interest on the Senior Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Senior Notes at the close of business on the January 15 or
July 15 next preceding the Interest Payment Date, even if such Senior Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Senior Note Indenture with respect to
defaulted interest. Principal, premium, if any, and interest and Liquidated
Damages on the Senior Notes will be payable at the office or agency of the
Company maintained for such purpose within the City and State of New York or, at
the option of the Company, payment of interest and Liquidated Damages 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 will 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 Senior
Note Trustee under the Senior Note 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. SENIOR NOTE INDENTURE. The Company issued the Senior Notes under an Senior
Note Indenture dated as of August 10, 1998 ("SENIOR NOTE INDENTURE") between the
Company and the Senior Note Trustee. The terms of the Senior Notes include
those stated in the Senior Note Indenture and those made part of the Senior Note
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections
A2-3
77aaa-77bbbb). The Senior Notes are subject to all such terms, and Holders
are referred to the Senior Note Indenture and such Act for a statement of
such terms. To the extent any provision of this Senior Note conflicts with
the express provisions of the Senior Note Indenture, the provisions of the
Senior Note Indenture shall govern and be controlling. The Senior Notes are
obligations of the Company limited to $300.0 million in aggregate principal
amount.
5. OPTIONAL REDEMPTION.
(a) The Senior Notes will be subject to redemption at any time at the
option of the Company, in whole but not in part, upon not less than 30 nor
more than 60 days' notice.
(b) The Senior Notes will be redeemable at a redemption price equal to
100% of the principal amount thereof plus the applicable Senior Make-Whole
Premium, plus, to the extent not included in the Senior Make-Whole Premium,
accrued and unpaid interest and Liquidated Damages, if any, to the date of
redemption. For purposes of the foregoing, "SENIOR MAKE-WHOLE PREMIUM"
means, with respect to a Senior Note, an amount equal to the excess, if
any, of (i) the aggregate present value as of the date of such redemption
of each dollar of principal of such Senior Note being redeemed and the
amount of interest (exclusive of interest accrued to the date of
redemption) that would have been payable in respect of such dollar if such
redemption had not been made, determined by discounting, on a semiannual
basis, such principal and interest at a rate equal to the sum of the
Treasury Yield (determined on the Business Day immediately preceding the
date of such redemption) plus 0.5% per annum, from the respective dates on
which such principal and interest would have been payable if such
redemption had not been made, over (ii) the aggregate principal amount of
such Senior Note being redeemed.
(c) Any redemption pursuant to this Paragraph 5 shall be made pursuant to
the provisions of Article 3 of the Senior Note Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 3.09, 4.10 and 4.15
of the Senior Note Indenture, the Company shall not be required to make
mandatory redemption payments with respect to the Senior Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a 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 Senior Notes at
a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to
the date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within 15 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 Senior Note Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales
and the aggregate amount of Excess Proceeds exceeds $20.0 million, the
Company shall commence an offer to all Holders of Senior Notes (a "SENIOR
ASSET SALE OFFER") pursuant to Section 3.09 of the Senior Note Indenture to
purchase the maximum principal amount of Senior Notes that may be purchased
out of the Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date fixed for the closing of
such offer, in accordance with the procedures set forth in the Senior Note
Indenture. To the extent that the aggregate amount of Senior Notes
tendered pursuant to a Senior Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency
A2-4
for any purpose not prohibited by the Senior Note Indenture. If the
aggregate principal amount of Senior Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Senior Note Trustee
shall select the Senior Notes to be purchased on a PRO RATA basis.
Holders of Senior Notes that are the subject of an offer to purchase
will receive a Senior Asset Sale Offer from the Company prior to any
related purchase date and may elect to have such Senior Notes purchased
by completing the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Senior Notes.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each Holder whose Senior
Notes are to be redeemed at its registered address. Senior Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Senior Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Senior
Notes or portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Senior Notes may be registered and Senior Notes may be exchanged
as provided in the Senior Note Indenture. The Registrar and the Senior Note
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 Senior Note Indenture.
The Company need not exchange or register the transfer of any Senior Note or
portion of a Senior Note selected for redemption, except for the unredeemed
portion of any Senior Note being redeemed in part. Also, the Company need not
exchange or register the transfer of any Senior Notes for a period of 15 days
before a selection of Senior Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
This Regulation S Temporary Global Senior Note is exchangeable in whole or in
part for one or more Global Senior Notes only (i) on or after the termination of
the 40-day restricted period (as defined in Regulation S) and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Senior Note Indenture. Upon exchange
of this Regulation S Temporary Global Senior Note for one or more Global Senior
Notes, the Senior Note Trustee shall cancel this Regulation S Temporary Global
Senior Note.
11. PERSONS DEEMED OWNERS. The registered Holder of a Senior Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Senior Notes voting as a
single class, and any existing default or compliance with any provision of the
Senior Note Indenture, the Senior Subsidiary Guarantees or the Senior Notes may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Senior Notes voting as a single class. Without the consent
of any Holder of a Senior Note, the Senior Note Indenture, the Senior Subsidiary
Guarantees or the Senior Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Senior Notes
in addition to or in place of certificated Senior Notes, to provide for the
assumption of the Company's or Guarantor's obligations to Holders of the Senior
Notes in case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Senior Notes or
that does not adversely affect the legal rights under the Senior Note Indenture
of any such Holder, to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Senior Note Indenture under the
Trust Indenture Act or to allow any Guarantor to execute a supplemental Senior
Note Indenture to the Senior Note Indenture and/or a Senior Subsidiary Guarantee
with respect to the Senior Notes.
A2-5
13. DEFAULTS AND REMEDIES. An "EVENT OF DEFAULT" occurs if: (i) the
Company defaults in the payment when due of interest on, or Liquidated
Damages, if any, with respect to, the Senior Notes and such default continues
for a period of 30 days; (ii) the Company defaults in the payment when due of
principal of or premium, if any, on the Senior Notes when the same becomes
due and payable at maturity, upon redemption (including in connection with an
offer to purchase) or otherwise; (iii) the Company or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 5.01; (iv) the
Company or any of its Restricted Subsidiaries fails to comply for 30 days
after notice to the Company by the Senior Note Trustee with any of the
provisions of Sections 4.07, 4.09, 4.10 or 4.15 of the Senior Note Indenture;
(v) the Company or any of its Restricted Subsidiaries fails to observe or
perform any other covenant, representation, warranty or other agreement in
the Senior Note Indenture or the Senior Notes for 60 days after notice to the
Company by the Senior Note Trustee; (vi) a default occurs 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 Senior Note
Indenture, which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"PAYMENT DEFAULT") or (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 $20.0 million
or more; (vii) the Company or any of its Restricted Subsidiaries fails to pay
final judgments aggregating in excess of $20.0 million (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 Senior Note
Indenture, any Senior Subsidiary Guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under such Guarantor's
Senior Subsidiary Guarantee.
If any Event of Default occurs and is continuing, the Senior Note Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Senior Notes may declare all the Senior 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, all outstanding Senior Notes
will become due and payable without further action or notice. Holders may
not enforce the Senior Note Indenture or the Senior Notes except as provided
in the Senior Note Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Senior Notes may direct
the Senior Note Trustee in its exercise of any trust or power. The Senior
Note Trustee may withhold from Holders of the Senior Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Senior Notes then outstanding by notice to
the Senior Note Trustee may on behalf of the Holders of all of the Senior
Notes waive any existing Default or Event of Default and its consequences
under the Senior Note Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Senior Notes.
The Company is required to deliver to the Senior Note Trustee annually a
statement regarding compliance with the Senior Note Indenture, and the
Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Senior Note Trustee a statement specifying such Default or
Event of Default.
14. SENIOR NOTE TRUSTEE DEALINGS WITH COMPANY. The Senior Note Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its
A2-6
Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Senior Note Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder, of the Company or any of the Guarantors, as such, shall not
have any liability for any obligations of the Company or such Guarantor under
the Senior Notes, the Senior Subsidiary Guarantees or the Senior Note
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Senior Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Notes.
16. AUTHENTICATION. This Senior Note shall not be valid until authenticated
by the manual signature of the Senior Note Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL SENIOR NOTES AND
RESTRICTED DEFINITIVE SENIOR NOTES. In addition to the rights provided to
Holders of Senior Notes under the Senior Note Indenture, Holders of
Restricted Global Senior Notes and Restricted Definitive Senior Notes shall
have all the rights set forth in the Senior Registration Rights Agreement
dated as of August 10, 1998, between the Company and the parties named on
the signature pages thereof (the "SENIOR REGISTRATION RIGHTS AGREEMENT").
19. 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 Senior Notes and the Senior Note
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 Senior Notes or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Senior Note Indenture and/or the Senior Registration
Rights Agreement. Requests may be made to:
Ball Corporation
Colorado Office Center
9300 West 108th Circle
Broomfield, CO 80021-3682
Attention: Chief Financial Officer
A2-7
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and
transfer this Senior Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
-----------------------------------------------------
to transfer this Senior 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:
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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.
A2-8
Option of Holder to Elect Purchase
If you want to elect to have this Senior Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Senior Note Indenture, check the box below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Senior Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Senior Note Indenture,
state the amount you elect to have purchased: $_____________
Date:
---------------
Your Signature:
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(SIGN EXACTLY AS YOUR NAME APPEARS ON THE FACE OF
THIS SENIOR NOTE)
Tax Identification No:
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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.
A2-9
SCHEDULE OF EXCHANGES OF INTERESTS IN
THE REGULATION S TEMPORARY GLOBAL SENIOR NOTE
The following exchanges of a part of this Regulation S Temporary Global Senior
Note for an interest in another Global Senior Note, or of other Restricted
Global Senior Notes for an interest in this Regulation S Temporary Global Senior
Note, have been made:
Principal Amount Signature of
Amount of of this Global authorized
decrease in Amount of increase Senior Note signatory of
Principal Amount in Principal following such Senior Note
of this Global Amount of this decrease (or Trustee or
Date of Exchange Senior Note Global Senior Note increase) Custodian
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A2-10
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 21 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: 7 3/4% Senior Notes due 2006 (CUSIP )
---------------------------------------------------------
Reference is hereby made to the Senior Note Indenture, dated as of August 10,
1998 (the "SENIOR NOTE INDENTURE"), between Ball Corporation, as issuer (the
"COMPANY"), and The Bank of New York, as Senior Note Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the Senior
Note Indenture.
____________________, (the "TRANSFEROR") owns and proposes to transfer the
Senior Note[s] or interest in such Senior Note[s] specified in Annex A hereto,
in the principal amount of $_____________ in such Senior 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 SENIOR NOTE OR A DEFINITIVE SENIOR NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Senior Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Senior 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 Senior Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Senior Note and/or the Definitive Senior Note and in the Senior
Note Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
TEMPORARY REGULATION S GLOBAL SENIOR NOTE, THE REGULATION S GLOBAL SENIOR NOTE
OR A DEFINITIVE SENIOR 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
B-1
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 and, (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
Senior Note Indenture, the transferred beneficial interest or Definitive
Senior Note will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Senior Note, the
Temporary Regulation S Global Senior Note and/or the Definitive Senior Note
and in the Senior Note Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL SENIOR NOTE OR A DEFINITIVE SENIOR 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 Senior Notes and
Restricted Definitive Senior 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 Senior Note or Restricted
Definitive Senior 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 Senior Note Indenture and (2) if
such Transfer is in respect of a principal amount of Senior 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 Senior Note Indenture, the
transferred beneficial interest or Definitive Senior Note will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Senior Note and/or the Definitive Senior Notes
and in the Senior Note Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SENIOR NOTE OR OF AN UNRESTRICTED DEFINITIVE SENIOR 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 Senior Note Indenture and any applicable blue sky securities laws of
any state of the United States and (ii) the restrictions on transfer
contained in the Senior Note 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
B-2
Senior Note Indenture, the transferred beneficial interest or Definitive
Senior Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Senior Notes, on Restricted Definitive Senior Notes and in the Senior Note
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 Senior Note Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Senior Note 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 Senior Note Indenture, the transferred beneficial
interest or Definitive Senior Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Senior Notes, on Restricted Definitive Senior
Notes and in the Senior Note 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 Senior Note Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer
contained in the Senior Note 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
Senior Note Indenture, the transferred beneficial interest or Definitive
Senior Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Senior
Notes or Restricted Definitive Senior Notes and in the Senior Note
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: ,
------------ ------
B-3
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 Senior Note (CUSIP ), or
(ii) / / Regulation S Global Senior Note (CUSIP ), or
(iii) / / IAI Global Senior Note (CUSIP ); or
(b) / / a Restricted Definitive Senior Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Senior Note (CUSIP ), or
(ii) / / Regulation S Global Senior Note (CUSIP ), or
(iii) / / IAI Global Senior Note (CUSIP ); or
(iv) / / Unrestricted Global Senior Note (CUSIP ); or
(b) / / a Restricted Definitive Senior Note; or
(c) / / an Unrestricted Definitive Senior Note,
in accordance with the terms of the Senior Note Indenture.
B-4
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 21 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: 7 3/4% Senior Notes due 2006 (CUSIP )
-----------------------------------------------
Reference is hereby made to the Senior Note Indenture, dated as of August 10,
1998 (the "SENIOR NOTE INDENTURE"), between Ball Corporation, as issuer (the
"COMPANY"), and The Bank of New York, as Senior Note Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the Senior
Note Indenture.
_________________________, (the "OWNER") owns and proposes to exchange the
Senior Note[s] or interest in such Senior Note[s] specified herein, in the
principal amount of $_______________ in such Senior Note[s] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SENIOR NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SENIOR NOTE FOR UNRESTRICTED DEFINITIVE SENIOR NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SENIOR NOTE
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SENIOR NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SENIOR
NOTE. In connection with the Exchange of the Owner's beneficial interest in
a Restricted Global Senior Note for a beneficial interest in an Unrestricted
Global Senior 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 Senior Notes and pursuant to
and in accordance with the United States Securities Act of 1933, as amended
(the "SECURITIES ACT"), (iii) the restrictions on transfer contained in the
Senior Note 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 Senior 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
SENIOR NOTE TO UNRESTRICTED DEFINITIVE SENIOR NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Senior
Note for an Unrestricted Definitive Senior Note, the Owner hereby certifies
(i) the Definitive Senior 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 Senior Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions
on transfer contained in the Senior Note Indenture and the Private Placement
Legend are not required in order to maintain compliance
C-1
with the Securities Act and (iv) the Definitive Senior 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 SENIOR NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SENIOR NOTE. In connection
with the Owner's Exchange of a Restricted Definitive Senior Note for a
beneficial interest in an Unrestricted Global Senior 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 Senior
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Senior Note 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 SENIOR NOTE TO
UNRESTRICTED DEFINITIVE SENIOR NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Senior Note for an Unrestricted Definitive Senior
Note, the Owner hereby certifies (i) the Unrestricted Definitive Senior 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 Senior Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Senior Note Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act and (iv)
the Unrestricted Definitive Senior 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 SENIOR NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SENIOR NOTES FOR RESTRICTED DEFINITIVE SENIOR NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SENIOR NOTES
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SENIOR NOTE TO RESTRICTED DEFINITIVE SENIOR NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Senior
Note for a Restricted Definitive Senior Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Senior 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
Senior Note Indenture, the Restricted Definitive Senior Note issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Senior Note and
in the Senior Note Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SENIOR NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SENIOR NOTE. In connection with
the Exchange of the Owner's Restricted Definitive Senior Note for a
beneficial interest in the [CHECK ONE] / / 144A Global Senior Note,
/ / Regulation S Global Senior Note, / / IAI Global Senior 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 Senior 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 Senior Note 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 Senior Note and in the Senior Note Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
---------------------------------------
[INSERT NAME OF OWNER]
By:
------------------------------------
Name:
Title:
Dated: ,
------------ ----
C-3
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 21 West
New York, NY 10286
Attention: Corporate Trust Administration
Re: 7 3/4% Senior Notes due 2006 (CUSIP )
--------------------------------------------------
Reference is hereby made to the Senior Note Indenture, dated as of August 10,
1998 (the "SENIOR NOTE INDENTURE"), between Ball Corporation, as issuer (the
"COMPANY"), and The Bank of New York, as Senior Note Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the Senior
Note Indenture.
In connection with our proposed purchase of $____________ aggregate principal
amount of:
(a) / / a beneficial interest in a Global Senior Note, or
(b) / / a Definitive Senior Note,
we confirm that:
1. We understand that any subsequent transfer of the Senior Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Senior Note Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Senior Notes or any interest therein
except in compliance with, such restrictions and conditions and the United
States Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Senior Notes have not been
registered under the Securities Act, and that the Senior 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 Senior 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 Senior 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 Senior Note or beneficial interest in a Global
Senior Note from us in a transaction
D-1
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 Senior 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 Senior Notes
purchased by us will bear a legend to the foregoing effect. We further
understand that any subsequent transfer by us of the Senior Notes or beneficial
interest therein acquired by us must be effected through one of the Placement
Agents.
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 Senior 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 Senior 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: ,
-------------- -----
D-2
EXHIBIT E
FORM OF NOTATION OF SENIOR SUBSIDIARY GUARANTEE
For value received, each Guarantor (which term includes any successor Person
under the Senior Note Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Senior Note Indenture and subject to
the provisions in the Senior Note Indenture dated as of August 10, 1998 (the
"SENIOR NOTE INDENTURE") among Ball Corporation, the Guarantors listed on
Schedule I thereto and The Bank of New York, as Senior Note Trustee (the "SENIOR
NOTE TRUSTEE"), (a) the due and punctual payment of the principal of, premium,
if any, and interest on the Senior Notes (as defined in the Senior Note
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 Senior Note Trustee
all in accordance with the terms of the Senior Note Indenture and (b) in case of
any extension of time of payment or renewal of any Senior 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 Senior Notes and to the Senior Note Trustee
pursuant to the Senior Subsidiary Guarantee and the Senior Note Indenture are
expressly set forth in Article 10 of the Senior Note Indenture and reference is
hereby made to the Senior Note Indenture for the precise terms of the Senior
Subsidiary Guarantee. Each Holder of a Senior Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Senior Note Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Senior Note Indenture and (c) appoints the Senior Note Trustee attorney-in-fact
of such Holder for such purpose; PROVIDED, HOWEVER, that the Indebtedness
evidenced by this Senior Subsidiary Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Senior Note in
accordance with the provisions of the Senior Note Indenture.
[Name of Guarantor(s)]
By:
---------------------------------------
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL SENIOR NOTE INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL SENIOR NOTE INDENTURE (this "SUPPLEMENTAL SENIOR NOTE INDENTURE"),
dated as of ________________, 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 Senior Note Indenture referred to herein) and The Bank of New
York, as Senior Note Trustee under the Senior Note Indenture referred to below
(the "SENIOR NOTE TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Senior Note
Trustee an Senior Note Indenture (the "SENIOR NOTE INDENTURE"), dated as of
August 10, 1998 providing for the issuance of an aggregate principal amount of
up to $300.0 million of 7 3/4% Senior Notes due 2006 (the "SENIOR NOTES");
WHEREAS, the Senior Note Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Senior Note Trustee a
supplemental Senior Note Indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's Obligations under the
Senior Notes and the Senior Note Indenture on the terms and conditions set forth
herein (the "SENIOR SUBSIDIARY GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Senior Note Indenture, the Senior Note
Trustee is authorized to execute and deliver this Supplemental Senior Note
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 Senior Note Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Senior Note Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Senior Note Indenture, to
jointly and severally Guarantee to each Holder of a Senior Note
authenticated and delivered by the Senior Note Trustee and to the
Senior Note Trustee and its successors and assigns, irrespective of
the validity and enforceability of the Senior Note Indenture, the
Senior Notes or the obligations of the Company hereunder or
thereunder, that:
(i) the principal of and interest on the Senior 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 Senior Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Senior Note 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
Senior 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
F-1
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 Senior Notes or the Senior
Note Indenture, the absence of any action to enforce the same, any waiver
or consent by any Holder of the Senior 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 Senior Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Senior Notes and
the Senior Note Indenture.
(e) If any Holder or the Senior Note Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian,
Senior Note Trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either
to the Senior Note Trustee or such Holder, this Senior Subsidiary
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
Senior Note Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the Senior
Note Indenture for the purposes of this Senior Subsidiary 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 Senior Note Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by
the Guarantors for the purpose of this Senior Subsidiary 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 Senior Subsidiary Guarantee.
(i) Pursuant to Section 10.04 of the Senior Note Indenture, after giving
effect to any maximum amount and any 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 Senior Note Indenture shall result in the obligations of such Guarantor
under its Senior Subsidiary Guarantee not constituting a fraudulent
transfer or conveyance.
F-2
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Senior Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Senior Note a notation of such
Senior Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Guarantor
unless:
(i) subject to Section 10.04 of the Senior Note Indenture, the Person
formed by or surviving any such consolidation or merger (if other than
a Guarantor or the Company) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental Senior Note
Indenture in form and substance reasonably satisfactory to the Senior
Note Trustee, under the Senior Notes, the Senior Note Indenture and
the Senior Subsidiary Guarantee on the terms set forth herein or
therein; and
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental Senior Note
Indenture, executed and delivered to the Senior Note Trustee and
satisfactory in form to the Senior Note Trustee, of the Senior Subsidiary
Guarantee endorsed upon the Senior Notes and the due and punctual
performance of all of the covenants and conditions of the Senior Note
Indenture to be performed by the Guarantor, such successor corporation
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 corporation
thereupon may cause to be signed any or all of the Senior Subsidiary
Guarantees to be endorsed upon all of the Senior Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered
to the Senior Note Trustee. All the Senior Subsidiary Guarantees so issued
shall in all respects have the same legal rank and benefit under the Senior
Note Indenture as the Senior Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of the Senior Note Indenture
as though all of such Senior Subsidiary Guarantees had been issued at the
date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Senior Note Indenture,
and notwithstanding clauses (a) and (b) above, nothing contained in the
Senior Note Indenture or in any of the Senior 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 a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all to the capital stock of any Guarantor, 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 Senior
Subsidiary Guarantee; PROVIDED that the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of the
Senior Note Indenture, including without limitation Section 4.10 of the
Senior Note Indenture. Upon delivery by the Company to the Senior Note
Trustee of an Officers'
F-3
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 Senior Note Indenture, including without limitation
Section 4.10 of the Senior Note Indenture, the Senior Note Trustee
shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under its Senior
Subsidiary Guarantee.
(b) Any Guarantor not released from its obligations under its Senior
Subsidiary Guarantee shall remain liable for the full amount of principal
of and interest on the Senior Notes and for the other obligations of any
Guarantor under the Senior Note Indenture as provided in Article 10 of the
Senior Note 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 Senior Notes, any Senior Subsidiary
Guarantees, the Senior Note Indenture or this Supplemental Senior Note Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Senior Notes by accepting a Senior Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Senior 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 LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL SENIOR NOTE 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 Senior Note 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 SENIOR NOTE TRUSTEE. The Senior Note Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or sufficiency of
this Supplemental Senior Note 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.
F-4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Senior
Note Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ,
-------------- -----
[GUARANTEEING SUBSIDIARY]
By:
--------------------------------------
Name:
Title:
BALL CORPORATION
By:
--------------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Senior Note Trustee
By:
--------------------------------------
Name:
Title:
F-5
SCHEDULE I
SCHEDULE OF GUARANTORS
----------------------
The following schedule lists each Guarantor under the Senior Note Indenture as
of the Date of this Senior Note Indenture:
1. Ball Aerospace and Technologies Corp., a Delaware corporation.
2. Ball Asia Pacific Limited, a Colorado corporation
3. Ball Glass Container Corporation, a Delaware corporation
4. Ball Holdings Corp., a Delaware corporation
5. Ball Metal Beverage Container Corp., a Colorado corporation
6. Ball Metal Food Container Corp., a Delaware corporation
7. Ball Metal Packaging Sales Corp., a Colorado corporation
8. Ball Packaging Corp., a Colorado corporation
9. Ball Plastic Container Corp., a Colorado corporation
10. Ball Technologies Holdings Corp., a Colorado corporation
11. Ball Technology Services Corporation, a California corporation
12. BG Holdings I, Inc., a Delaware corporation
13. BG Holdings II, Inc., a Delaware corporation
14. Efratom Holding, Inc., a Colorado corporation
15. Latas de Aluminio Reynolds, Inc., a Delaware corporation
16. RCAL Cans, Inc., a Delaware corporation
17. RIND Cans, Inc., a Delaware corporation