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EXECUTION COPY
EXHIBIT 4.8
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Flowserve Finance B.V.
Issuer
The Guarantors named herein
12-1/4% Senior Subordinated Securities Due 2010
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INDENTURE
Dated as of August 8, 2000
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The Bank of New York
Trustee
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CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
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<S> <C> <C>
310(a)(1) ......................................... 7.10
(a)(2) ......................................... 7.10
(a)(3) ......................................... N.A.
(a)(4) ......................................... N.A.
(b) ......................................... 7.08; 7.10
(c) ......................................... N.A.
311(a) ......................................... 7.11
(b) ......................................... 7.11
(c) ......................................... N.A.
312(a) ......................................... 2.05
(b) ......................................... 13.03
(c) ......................................... 13.03
313(a) ......................................... 7.06
(b)(1) ......................................... N.A.
(b)(2) ......................................... 7.06
(c) ......................................... 11.02
(d) ......................................... 7.06
314(a) ......................................... 4.02; 4.11; 13.02
(b) ......................................... N.A.
(c)(1) ......................................... 13.04
(c)(2) ......................................... 13.04
(c)(3) ......................................... N.A.
(d) ......................................... N.A.
(e) ......................................... 13.05
(f) ......................................... 4.10
315(a) ......................................... 7.01
(b) ......................................... 7.05; 13.02
(c) ......................................... 7.01
(d) ......................................... 7.01
(e) ......................................... 6.11
316(a)(last sentence).................................... 13.06
(a)(1)(A) ......................................... 6.05
(a)(1)(B) ......................................... 6.04
(a)(2) ......................................... N.A.
(b) ......................................... 6.07
317(a)(1) ......................................... 6.08
(a)(2) ......................................... 6.09
(b) ......................................... 2.04
318(a) ......................................... 13.01
</TABLE>
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
Definitions and Incorporation by Reference
<S> <C>
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Other Definitions ............................................31
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..............31
SECTION 1.04. Rules of Construction..........................................32
SECTION 1.05. Acts of Holders ............................................32
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating................................................33
SECTION 2.02. Execution and Authentication...................................34
SECTION 2.03. Registrar and Paying Agent.....................................34
SECTION 2.04. Paying Agent To Hold Money in Trust............................35
SECTION 2.05. Securityholder Lists...........................................36
SECTION 2.06. Transfer and Exchange..........................................36
SECTION 2.07. Replacement Securities.........................................36
SECTION 2.08. Outstanding Securities.........................................37
SECTION 2.09. Temporary Securities...........................................38
SECTION 2.10. Cancellation ............................................38
SECTION 2.11. Defaulted Interest ............................................38
SECTION 2.12. CUSIP, ISIN and Common Code Numbers............................38
SECTION 2.13. Issuance of Additional Securities..............................38
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee ............................................39
SECTION 3.02. Selection of Securities To Be Redeemed.........................40
SECTION 3.03. Notice of Redemption...........................................40
SECTION 3.04. Effect of Notice of Redemption.................................41
SECTION 3.05. Deposit of Redemption Price....................................41
SECTION 3.06. Securities Redeemed in Part....................................41
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ARTICLE 4
Covenants
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SECTION 4.01. Payment of Securities..........................................41
SECTION 4.02. SEC Reports....................................................42
SECTION 4.03. Limitation on Indebtedness.....................................42
SECTION 4.04. Limitation on Restricted Payments..............................47
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries...............................................50
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.............52
SECTION 4.07. Limitation on Affiliate Transactions...........................56
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries....................................57
SECTION 4.09. Change of Control ............................................58
SECTION 4.10. Excess Cash Flow Repurchase Offer..............................60
SECTION 4.11. Future Guarantors ............................................63
SECTION 4.12. Additional Amounts ............................................64
SECTION 4.13. Compliance Certificate.........................................65
SECTION 4.14. Further Instruments and Acts...................................66
SECTION 4.15. Ownership of the Issuer........................................66
SECTION 4.16. Limitation on Business Activities of the Issuer................66
SECTION 4.17. Limitation on Use of Proceeds..................................66
ARTICLE 5
Successor Company
SECTION 5.01. When the Company or Issuer May Merge or Transfer Assets........66
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default..............................................69
SECTION 6.02. Acceleration...................................................72
SECTION 6.03. Other Remedies.................................................72
SECTION 6.04. Waiver of Past Defaults........................................72
SECTION 6.05. Control by Majority............................................73
SECTION 6.06. Limitation on Suits............................................73
SECTION 6.07. Rights of Holders To Receive Payment...........................73
SECTION 6.08. Collection Suit by Trustee.....................................74
SECTION 6.09. Trustee May File Proofs of Claim...............................74
SECTION 6.10. Priorities.....................................................74
SECTION 6.11. Undertaking for Costs..........................................75
SECTION 6.12. Waiver of Stay or Extension Laws...............................75
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ARTICLE 7
Trustee
<S> <C>
SECTION 7.01. Duties of Trustee..............................................75
SECTION 7.02. Rights of Trustee..............................................77
SECTION 7.03. Individual Rights of Trustee...................................78
SECTION 7.04. Trustee's Disclaimer...........................................78
SECTION 7.05. Notice of Defaults.............................................78
SECTION 7.06. Reports by Trustee to Holders..................................78
SECTION 7.07. Compensation and Indemnity.....................................79
SECTION 7.08. Replacement of Trustee.........................................80
SECTION 7.09. Successor Trustee by Merger....................................81
SECTION 7.10. Eligibility; Disqualification..................................81
SECTION 7.11. Preferential Collection of Claims Against Issuer...............81
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance...............81
SECTION 8.02. Conditions to Defeasance.......................................83
SECTION 8.03. Application of Trust Money.....................................85
SECTION 8.04. Repayment to Issuer............................................85
SECTION 8.05. Indemnity for Government Obligations...........................85
SECTION 8.06. Reinstatement..................................................85
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders.....................................86
SECTION 9.02. With Consent of Holders........................................87
SECTION 9.03. Compliance with Trust Indenture Act............................88
SECTION 9.04. Revocation and Effect of Consents and Waivers..................88
SECTION 9.05. Notation on or Exchange of Securities..........................89
SECTION 9.06. Trustee To Sign Amendments.....................................89
SECTION 9.07. Payment for Consent............................................89
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate......................................89
SECTION 10.02. Liquidation, Dissolution, Bankruptcy..........................90
SECTION 10.03. Default on Senior Indebtedness of the Issuer..................90
SECTION 10.04. Acceleration of Payment of Securities.........................91
SECTION 10.05. When Distribution Must Be Paid Over...........................92
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SECTION 10.06. Subrogation...................................................92
SECTION 10.07. Relative Rights...............................................92
SECTION 10.08. Subordination May Not Be Impaired by Issuer...................92
SECTION 10.09. Rights of Trustee and Paying Agent............................93
SECTION 10.10. Distribution or Notice to Representative......................93
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit
Right To Accelerate.......................................93
SECTION 10.12. Trust Moneys Not Subordinated.................................93
SECTION 10.13. Trustee Entitled To Rely......................................94
SECTION 10.14. Trustee To Effectuate Subordination. Each Securityholder
by accepting a Security authorizes........................94
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness
of the Issuer.............................................94
SECTION 10.16. Reliance by Holders of Senior Indebtedness of the Issuer
on Subordination Provisions...............................95
ARTICLE 11
The Company Guaranty
SECTION 11.01. The Company Guaranty..........................................95
SECTION 11.02. Successors and Assigns........................................97
SECTION 11.03. No Waiver.....................................................97
SECTION 11.04. Modification..................................................98
ARTICLE 12
Subordination of the Company Guaranty
SECTION 12.01. Agreement To Subordinate......................................98
SECTION 12.02. Liquidation, Dissolution, Bankruptcy..........................98
SECTION 12.03. Default on Senior Indebtedness of the Company................99
SECTION 12.04. Demand for Payment...........................................100
SECTION 12.05. When Distribution Must Be Paid Over..........................100
SECTION 12.06. Subrogation..................................................100
SECTION 12.07. Relative Rights..............................................101
SECTION 12.08. Subordination May Not Be Impaired by Company.................101
SECTION 12.09. Rights of Trustee and Paying Agent...........................101
SECTION 12.10. Distribution or Notice to Representative.....................102
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit
Right To Demand Payment..................................102
SECTION 12.12. Trustee Entitled To Rely.....................................102
SECTION 12.13. Trustee To Effectuate Subordination..........................102
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SECTION 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness
of the Company...........................................103
SECTION 12.15. Reliance by Holders of Senior Indebtedness of the
Company on Subordination Provisions......................103
ARTICLE 13
Subsidiary Guaranties
SECTION 13.01. Guaranties...................................................103
SECTION 13.02. Limitation on Liability......................................106
SECTION 13.03. Successors and Assigns.......................................106
SECTION 13.04. No Waiver....................................................106
SECTION 13.05. Modification.................................................106
SECTION 13.06. Release of Subsidiary Guarantor..............................107
ARTICLE 14
Subordination of Subsidiary Guaranties
SECTION 14.01. Agreement To Subordinate.....................................107
SECTION 14.02. Liquidation, Dissolution, Bankruptcy.........................107
SECTION 14.03. Default on Senior Indebtedness of Subsidiary Guarantor.......108
SECTION 14.04. Demand for Payment...........................................109
SECTION 14.05. When Distribution Must Be Paid Over..........................109
SECTION 14.06. Subrogation..................................................110
SECTION 14.07. Relative Rights..............................................110
SECTION 14.08. Subordination May Not Be Impaired by Issuer or any
Subsidiary Guarantor.....................................110
SECTION 14.09. Rights of Trustee and Paying Agent...........................110
SECTION 14.10. Distribution or Notice to Representative.....................111
SECTION 14.11. Article 14 Not To Prevent Events of Default or Limit Right
To Demand Payment........................................111
SECTION 14.12. Trustee Entitled To Rely.....................................111
SECTION 14.13. Trustee To Effectuate Subordination..........................112
SECTION 14.14. Trustee Not Fiduciary for Holders of Senior Indebtedness
of Subsidiary Guarantor..................................112
SECTION 14.15. Reliance by Holders of Senior Indebtedness of Subsidiary
Guarantors on Subordination Provisions...................112
ARTICLE 15
Miscellaneous
SECTION 15.01. Trust Indenture Act Controls.................................113
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SECTION 15.02. Notices......................................................113
SECTION 15.03. Consent to Jurisdiction and Service..........................114
SECTION 15.04. Communication by Holders with Other Holders..................114
SECTION 15.05. Certificate and Opinion as to Conditions Precedent...........114
SECTION 15.06. Statements Required in Certificate or Opinion................115
SECTION 15.07. When Securities Disregarded..................................115
SECTION 15.08. Rules by Trustee, Paying Agent and Registrar.................115
SECTION 15.09. Legal Holidays...............................................115
SECTION 15.10. Governing Law................................................116
SECTION 15.11. No Recourse Against Others...................................116
SECTION 15.12. Successors...................................................116
SECTION 15.13. Multiple Originals...........................................116
SECTION 15.14. Table of Contents; Headings..................................116
</TABLE>
Rule 144A/Regulation S Appendix
Exhibit 1 - Form of Initial Security
Exhibit A - Form of Face of Exchange Security or Private
Exchange Security
Exhibit B-1 - Form of Certification to be Given by Holder
of Beneficial Interest in a Temporary
Regulation S Global Security
Exhibit B-2 - Form of Euroclear and Clearstream Certificate
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INDENTURE dated as of August 8, 2000, among
Flowserve Finance B.V., a Netherlands besloten
vennootschap with corporate seat in Amsterdam (the
"Issuer"), the GUARANTORS named herein and The Bank
of New York, a New York banking corporation(the
"Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Issuer's
Initial Securities, Exchange Securities and Private Exchange Securities
(collectively, the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquisition" means the acquisition by the Company, directly
or indirectly, of 100% of the partnership interests of Ingersoll-Dresser Pump
Company.
"Additional Assets" means any:
(1) property, plant or equipment used in a Related
Business;
(2) the Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition
of such Capital Stock by the Company or another
Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clause (2)
or (3) above is primarily engaged in a Related Business.
"Additional Dollar Notes" means, subject to the Company's
compliance with Section 4.03, 12-1/4% Senior Subordinated Securities Due 2010
issued from time to time after the Issue Date under the terms of the Dollar
Notes Indenture (other than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of the
Dollar Notes Indenture and other than Dollar Notes Exchange Securities or Dollar
Notes Private Exchange Securities (in each case as defined in the Dollar Notes
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Indenture) issued pursuant to an exchange offer for other Dollar Notes
outstanding under the Dollar Notes Indenture).
"Additional Securities" means, subject to the Company's
compliance with Section 4.03, 12-1/4% Senior Subordinated Securities Due 2010
issued from time to time after the Issue Date under the terms of this Indenture
(other than pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this Indenture and
other than Exchange Securities or Private Exchange Securities issued pursuant to
an exchange offer for other Securities outstanding under this Indenture).
"Affiliate" of any specified Person means: (1) any other
Person, directly or indirectly, controlling or controlled by; or (2) under
direct or indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of Sections 4.04, 4.06 and 4.07 only,
"Affiliate" shall also mean any beneficial owner of Capital Stock representing
5% or more of the total voting power of the Voting Stock (on a fully diluted
basis) of the Company or of rights or warrants to purchase such Capital Stock
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary
(other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Company or a
Restricted Subsidiary);
(2) all or substantially all the assets of any division or
line of business of the Company or any Restricted Subsidiary; or
(3) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or
such Restricted Subsidiary
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(other than, in the case of clauses (1), (2) and (3), (A) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly Owned Subsidiary (or to a Restricted Subsidiary so long
as the aggregate fair market value of all assets transferred to Restricted
Subsidiaries pursuant to this clause (A) does not exceed $50.0 million); (B) for
purposes of Section 4.06 only, a disposition that constitutes a Restricted
Payment permitted by Section 4.04 or a Permitted Investment; (C) sales or other
dispositions of obsolete, worn-out or otherwise unsuitable assets or excess
equipment in the ordinary course of business; and (D) a disposition of assets
with a fair market value of less than $1,000,000).
Notwithstanding anything to the contrary set forth above, (x)
unless, at the time of such disposition, the Company has Investment Grade
Status, a disposition of Receivables and Related Assets shall be deemed to
constitute an Asset Disposition and (y) a disposition of all or substantially
all the assets of the Company and its Restricted Subsidiaries taken as a whole
will be governed by the provisions of Sections 4.09 and/or 5.01 and not by the
provisions of Section 4.06.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (1) the sum of
the products of numbers of years from the date of determination to the dates of
each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bank Indebtedness" means all Obligations pursuant to the
Credit Agreement.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board
and (in the case of the Issuer) the management board of the Issuer.
"Business Day" means each day other than a Saturday, Sunday or
a day on which commercial banking
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institutions are authorized or required by law to close in New York City,
Amsterdam, London or Luxembourg.
"Capital Lease Obligation" means an obligation that is
required to be classified and accounted for as a capital lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrence of any of the
following events:
(1) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (1) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of a majority of the
total voting power of the Voting Stock of the Company (for the purposes
of this clause (1), such other person shall be deemed to beneficially
own any Voting Stock of a Person (the "specified person") held by an
other Person (the "parent entity"), if such other person is the
beneficial owner (as defined in this clause (1)), directly or
indirectly, of a majority of the voting power of the Voting Stock of
such parent entity);
(2) individuals who on the Issue Date constituted the Board of
Directors (together with any new directors whose election by such Board
of Directors or whose nomination for election by the shareholders of
the Company was approved by a vote of 66-2/3% of the directors of the
Company then still in office who were either directors on the Issue
Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office; or
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(3) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company (determined on a consolidated basis) to another Person, other
than a transaction following which in the case of a merger or
consolidation transaction, securities that represented 100% of the
Voting Stock of the Company immediately prior to such transaction (or
other securities into which such securities are converted as part of
such merger or consolidation transaction) constitute at least a
majority of the voting power of the Voting Stock of the surviving
Person in such merger or consolidation transaction.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodity Agreement" means, in respect of a Person, any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Company" means the party named as such in the Dollar Notes
Indenture until a successor replaces it, and thereafter, means the successor
and, for the purposes of any provision contained therein and required by the
TIA, each other obligor on the Dollar Notes.
"Company Guaranty" means the Guarantee by the Company of the
Issuer's obligations with respect to the Securities.
"Consent Decree" means the consent decree entered on July 28,
2000 in the U.S. District Court for the District of Columbia in the matter of
United States of America v. Flowserve Corporation, Ingersoll-Dresser Pump
Company and Ingersoll-Rand Company relating to the purchase of Ingersoll-Dresser
Pump Company by the Company.
"Consent Decree Assets" means the assets identified in the
Consent Decree that the Company, Ingersoll-Dresser Pump Company and
Ingersoll-Rand Company have been ordered and directed to divest in connection
with the Acquisition.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of
(x) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters for
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which internal financial statements are available ending on or prior to
the date of such determination to
(y) Consolidated Interest Expense for such four fiscal
quarters;
provided, however, that:
(1) if the Company or any Restricted Subsidiary has Incurred
any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or
both, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day
of such period;
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since
the beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on
the date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense
for such period shall be calculated on a pro forma basis as if such
discharge had occurred on the first day of such period and as if the
Company or such Restricted Subsidiary has not earned the interest
income actually earned during such period in respect of cash or
Temporary Cash Investments used to repay, repurchase, defease or
otherwise discharge such Indebtedness;
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to EBITDA
(if negative), directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable
to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Restricted Subsidiaries in connection with
such Asset Disposition
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for such period (or, if the Capital Stock of any Restricted Subsidiary
is sold, the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction
requiring a calculation to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred on the
first day of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Company or any Restricted Subsidiary since the beginning of such
period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant
to clause (3) or (4) above if made by the Company or a Restricted
Subsidiary during such period, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving pro forma effect
thereto as if such Asset Disposition, Investment or acquisition
occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
Incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting officer (and shall
include any applicable Pro Forma Cost Savings). If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest of
such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months).
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"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such total interest expense,
and to the extent incurred by the Company or its Restricted Subsidiaries,
without duplication:
(1) interest expense attributable to capital leases and the
interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction;
(2) amortization of debt discount and debt issuance cost;
(3) capitalized interest;
(4) non-cash interest expenses;
(5) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing;
(6) net payments pursuant to Hedging Obligations;
(7) Preferred Stock dividends in respect of all Preferred
Stock held by Persons other than the Company or a Wholly Owned
Subsidiary (other than dividends payable solely in Capital Stock (other
than Disqualified Stock) of the issuer of such Preferred Stock);
(8) interest incurred in connection with Investments in
discontinued operations;
(9) interest accruing on any Indebtedness of any other Person
to the extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Company or any Restricted Subsidiary and there shall
have occurred and continues an event of default under such Indebtedness
or any payment is actually made in respect of such Guarantee;
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or
trust; and
(11) any premiums, fees, discounts, expenses and losses on the
sale of Receivables and Related Assets (and any amortization thereof)
payable in connection
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with a Receivables Program, as determined on a consolidated basis in
conformity with GAAP.
"Consolidated Net Income" means, for any period, the net
income of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company
or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid
to a Restricted Subsidiary, to the limitations contained in
clause (3) below); and
(B) the Company's equity in a net loss of any such
Person for such period shall be included in determining such
Consolidated Net Income;
(2) any net income (or loss) of any Person acquired by the
Company or a Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition;
(3) any net income of any Restricted Subsidiary that is not a
Subsidiary Guarantor if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or
the making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that:
(A) subject to the exclusion contained in clause (4)
below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in
such Consolidated Net Income up to the aggregate amount of
cash actually distributed by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary as
a dividend or other distribution (subject, in the case of a
dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause); and
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(B) the Company's equity in a net loss of any such
Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;
(4) any gain (but not loss) realized upon the sale or other
disposition of any assets (other than any Consent Decree Assets) of the
Company, its consolidated Subsidiaries or any other Person (including
pursuant to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any gain
(but not loss) realized upon the sale or other disposition of any
Capital Stock of any Person;
(5) extraordinary gains or losses; and
(6) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for the purposes of Section 4.04 only, there
shall be excluded from Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of the Investments or
return of capital to the Company or a Restricted Subsidiary to the extent such
repurchases, repayments, redemptions, proceeds or returns increase the amount of
Restricted Payments permitted under Section 4.04(a)(3)(C).
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of the end of the
most recent fiscal quarter of the Company ending at least 45 days prior to the
taking of any action for the purpose of which the determination is being made,
as the sum of:
(1) the par or stated value of all outstanding Capital
Stock of the Company plus
(2) paid-in capital or capital surplus relating to such
Capital Stock plus
(3) any retained earnings or earned surplus
less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock. In determining "Consolidated Net Worth," the Company shall
exclude the impact of any write-off of deferred financing fees occurring in
connection with any transaction subject to Section 5.01 of this Indenture for
the purpose of which the determination is being made.
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"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the dated hereof is located at 101 Barclay Street, Floor 21
West, New York, New York 10286. Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Issuer).
"Credit Agreement" means the Credit Agreement to be entered
into by and among the Company, certain of its Subsidiaries, the lenders referred
to therein, Credit Suisse First Boston, New York branch, as Syndication Agent,
Bank of America, N.A., as Administrative Agent, Collateral Agent and Swingline
Lender, and ABN-AMRO Bank N.V., Bank One, and Salomon Smith Barney, Inc., as
Co-Documentation Agents, together with the related documents thereto (including
the term loans and revolving loans thereunder, any guarantees and security
documents), as amended, extended, renewed, restated, refinanced, supplemented or
otherwise modified (in whole or in part, and without limitation as to amount,
terms, conditions, covenants and other provisions) from time to time, and any
agreement (and related document) governing Indebtedness incurred to Refinance,
in whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness" with respect to a Person
means (1) the Bank Indebtedness; and (2) any other Senior Indebtedness of such
Person which, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $25.0 million and is specifically
designated by such Person in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of this Indenture.
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"Disqualified Stock" means, with respect to any Person, any
Capital Stock which 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) or
upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder
for Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part;
in each case on or prior to the first anniversary of the Stated Maturity of the
Securities; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to purchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if (1) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the terms applicable to the Securities in Sections 4.06 and
4.09; and (2) any such requirement only becomes operative after compliance with
such terms applicable to the Securities, including the purchase of any
Securities tendered pursuant thereto.
"Dollar Notes" means the 12-1/4% Senior Subordinated Notes due
2010 (as defined therein) issued pursuant to the Dollar Notes Indenture.
"Dollar Notes Indenture" means the Indenture dated August 8,
2000 among the Company, the Bank of New York, and the guarantors named therein.
"Dollar Notes Holder" means the person in whose name a Dollar
Note is registered on the Registrar's (as defined in the Dollar Notes Indenture)
books.
"EBITDA" for any period means the sum of Consolidated Net
Income, plus the following to the extent deducted in calculating such
Consolidated Net Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries;
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<PAGE> 21
(2) Consolidated Interest Expense;
(3) depreciation and amortization expense of the Company and
its consolidated Restricted Subsidiaries (excluding amortization
expense attributable to a prepaid operating activity item that was paid
in cash in a prior period);
(4) all other non-cash charges of the Company and its
consolidated Restricted Subsidiaries (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for
cash expenditures in any future period); and
(5) cash integration and restructuring charges in connection
with the Acquisition and taken with respect to periods ended on or
prior to December 31, 2001, in an aggregate amount not to exceed $65.0
million;
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and non- cash charges of, a Restricted Subsidiary shall be added to Consolidated
Net Income to compute EBITDA only to the extent (and in the same proportion)
that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income 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 approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Eligible Indebtedness" means any indebtedness other than:
(1) Indebtedness in the form of, or represented by, bonds or
other securities or any guarantee thereof (other than a guarantee of
Indebtedness of the Company in the form of, or represented by, bonds or
other securities); and
(2) Indebtedness that is, or may be, quoted, listed or
purchased and sold on any stock exchange, automated trading system or
over-the-counter or other securities market (including, without
prejudice to the generality of the foregoing, the market for securities
eligible for resale pursuant to Rule 144A under the Securities Act).
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<PAGE> 22
"European Economic Area" means the member nations of the
European Economic Area pursuant to the Oporto Agreement on the European Economic
Area dated May 2, 1992, as amended.
"Euro Equivalent" means with respect to any monetary amount in
a currency other than Euros, at any time of determination thereof, the amount of
Euros obtained by converting such foreign currency involved in such computation
into Euros at the spot rate for the purchase of Euros with the applicable
foreign currency as published in The Wall Street Journal in the "Exchange Rates"
column under the heading "Currency Trading" on the date two Business Days prior
to such determination.
"European Government Obligations" means direct non-callable
obligations of, or non-callable obligations permitted by, any member nation of
the European Union, the payment or guarantee of which is secured by the full
faith and credit of the respective nation, provided that such nation has a
credit rating at least equal to that of the highest rated member nation of the
European Economic Area.
"European Union" means the member nations to the third stage
of economic and monetary union pursuant to the Treaty of Rome establishing the
European Community, as amended by the Treaty on European Union, signed at
Maastricht on February 7, 1992.
"Excess Cash Flow", with respect to the Company, has the
meaning specified in the Credit Agreement as in effect on the Issue Date.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Securities" means the debt securities of the Issuer
issued pursuant to this Indenture in exchange for, and in an aggregate principal
amount equal to, the Initial Securities, in compliance with the terms of the
Registration Rights Agreement.
"Facilities" means the Term Loan Facilities and the Revolving
Credit Facilities.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary
that is incorporated in a jurisdiction other than the United States or a State
thereof or the District of Columbia and with respect to which more than 80% of
any of its sales, earnings or assets (determined on a consolidated basis in
accordance with GAAP) are located in, generated from or derived from operations
located in territories
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<PAGE> 23
outside of the United States of America and jurisdictions outside the United
States of America.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in:
(1) the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by
a significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the
inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements
in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
All ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such Person (whether
arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to
take-or-pay or to maintain financial statement conditions or
otherwise); or
(2) entered into for the purpose of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
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<PAGE> 24
"Guaranty Agreement" means a supplemental indenture, in a form
satisfactory to the Trustee, pursuant to which a Subsidiary Guarantor guarantees
the Issuer's obligations with respect to the Securities on the terms provided
for in this Indenture.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be Incurred by such Person at the time it becomes a Restricted Subsidiary. The
term "Incurrence" when used as a noun shall have a correlative meaning. The
accretion of principal of a non-interest bearing or other discount security
shall not be deemed the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(1) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due
and payable;
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(3) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(4) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance, bank guaranty
or similar credit transaction (other than obligations with respect
thereto securing obligations (other than obligations described in
clauses (1) through (3) above) entered
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<PAGE> 25
into in the ordinary course of business of such Person to the extent
such letters of credit, banker's acceptances, bank guaranties or
similar credit transactions are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the tenth Business
Day following payment thereon);
(5) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock of such Person or, with respect to any Preferred Stock of any
Subsidiary of such Person, the principal amount of such Preferred Stock
to be determined in accordance with this Indenture (but excluding, in
each case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1)
through (5) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee;
(7) all obligations of the type referred to in clauses (1)
through (6) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets and the amount of the obligation
so secured; and
(8) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Intercompany Loans" means the loans by the Issuer to the
Company or any of the Company's Wholly Owned Subsidiaries.
"Interest Rate Agreement" means in respect of a Person any
interest rate swap agreement, interest rate cap agreement or other financial
agreement or arrangement designed to protect such Person against fluctuations in
interest rates.
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<PAGE> 26
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of the
lender) or other extensions of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by such Person. For purposes of the
definition of "Unrestricted Subsidiary", the definition of "Restricted Payment"
and Section 4.04:
(1) "Investment" shall include the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market
value of the net assets of any Subsidiary of the Company at the time
that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have
a permanent "Investment" in an Unrestricted Subsidiary equal to an
amount (if positive) equal to (A) the Company's "Investment" in such
Subsidiary at the time of such redesignation less (B) the portion
(proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time
of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of
Directors.
"Investment Grade Status" means that the credit rating of the
Company's senior unsecured, non-credit- enhanced long-term debt is (a) "BBB-" or
higher according to Standard & Poor's Rating Group or (b) "Baa3" or higher
according to Moody's Investors Service, Inc.
"Issuer" means the party named as such in this Indenture until
a successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Issue Date" means August 8, 2000.
"Lenders" has the meaning specified in the Credit Agreement.
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<PAGE> 27
"Leverage Ratio" has the meaning specified in the Credit
Agreement as in effect on the Issue Date.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash
payments received therefrom (including any cash payments received by way of
deferred payment of principal pursuant to a note or installment receivable or
otherwise and proceeds from the sale or other disposition of any securities
received as consideration, but only as and when received, but excluding any
other consideration received in the form of assumption by the acquiring Person
of Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form), in each case net of:
(1) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a
liability under GAAP, as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by
any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security agreement of any kind with
respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable
law, be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made
to minority interest holders in Restricted Subsidiaries as a result of
such Asset Disposition; and
(4) the deduction of appropriate amounts provided by the
seller as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed in such Asset
Disposition and retained by the Company or any Restricted Subsidiary
after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
19
<PAGE> 28
"Obligations" means with respect to any Indebtedness all
obligations for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"OECD" means the Organization for Economic Cooperation and
Development.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer or the Secretary of the Company or (in the case of
the Issuer) any managing director of the Issuer.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, the Issuer or the Trustee.
"Permitted Employee Stock Purchase Loans" means loans, in an
aggregate amount outstanding at any time not to exceed $30.0 million, made by
third parties (other than any Affiliate of the Company) to employees of the
Company and its Subsidiaries who are participants in the Company's stock
purchase program to enable such employees to purchase common stock of the
Company.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in:
(1) the Company, a Restricted Subsidiary or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary; provided, however, that the primary business of such
Restricted Subsidiary is a Related Business;
(2) another Person if as a result of such Investment such
other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary
business is a Related Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include
20
<PAGE> 29
such concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(6) loans or advances to employees made in the ordinary course
of business consistent with past practices of the Company or such
Restricted Subsidiary, but in any event not to exceed $5.0 million in
the aggregate outstanding at any one time;
(7) guaranties of Permitted Employee Stock Purchase Loans;
(8) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments;
(9) any Person to the extent such Investment represents the
non-cash portion of the consideration received for an Asset Disposition
as permitted pursuant to the covenant described under Section 4.06;
(10) so long as no Default shall have occurred and be
continuing (or result therefrom), in Unrestricted Subsidiaries in an
aggregate amount which, when taken together with the amount of all
other Investments made pursuant to this clause (10) which at such time
have not been repaid, does not exceed $25.0 million;
(11) so long as no Default shall have occurred and be
continuing (or result therefrom), in any Person in an aggregate amount
which, when taken together with the amount of all other Investments
made pursuant to this clause (11) which at such time have not been
repaid, does not exceed $25.0 million; and
(12) a trust, limited liability company, special purpose
entity or other similar entity in connection with a Receivables
Program; provided, however, that (A) such Investment is made by a
Receivables Subsidiary and (B) the only assets transferred to such
trust, limited liability company, special purpose entity or other
similar entity consist of Receivables and Related Assets of such
Receivables Subsidiary.
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"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"Pro Forma Cost Savings" means, with respect to any period,
the reduction in costs that were (1) directly attributable to an asset
acquisition and calculated on a basis that is consistent with Regulation S-X
under the Securities Act in effect and applied as of the Issue Date; or (2)
implemented by the business that was the subject of any such asset acquisition
within 6 months of the date of such asset acquisition and that are supportable
and quantifiable by the underlying accounting records of such business, in the
case of each of (1) and (2), as if such reduction in costs had been effected as
of the beginning of such period.
"Public Equity Offering" means an underwritten primary public
offering of common stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Receivables and Related Assets" means accounts receivable,
instruments, chattel paper, obligations, general intangibles and other similar
assets, including interest in merchandise or goods, the sale or lease of which
give rise to the foregoing, related contractual rights, guarantees, insurance
proceeds, collections, other related assets and proceeds of all the foregoing.
"Receivables Program" means with respect to any Person, any
accounts receivable securitization program pursuant to which such Person
pledges, sells or otherwise transfers or encumbers its accounts receivable,
including a trust, limited liability company, special purpose entity or other
similar entity.
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<PAGE> 31
"Receivables Subsidiary" means a Wholly Owned Subsidiary (i)
created for the purpose of financing receivables created in the ordinary course
of business of the Company and its Subsidiaries and (ii) the sole assets of
which consist of Receivables and Related Assets of the Company and its
Subsidiaries and related Permitted Investments.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Company, the Issuer or any Restricted Subsidiary
existing on the Issue Date or Incurred in compliance with this Indenture,
including Indebtedness that Refinances Refinancing Indebtedness; provided,
however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the
time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced; and
(3) such Refinancing Indebtedness has an aggregate principal
amount (or if Incurred with original issue discount, an aggregate issue
price) that is equal to or less than the aggregate principal amount (or
if Incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (plus fees and expenses, including any
premium and defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (B)
Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means the Registration Rights
Agreement dated August 3, 2000 among the Company, the Issuer, the Subsidiary
Guarantors, Credit Suisse First Boston (Europe) Limited, Bank of America
International Limited, ABN AMRO Bank N.V. and First Chicago Limited.
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"Related Business" means any business in which the Company was
engaged on the Issue Date and any business related, ancillary or complementary
to any business of the Company in which the Company was engaged on the Issue
Date or any industrial manufacturing or related services business.
"Representative" means with respect to a Person any trustee,
agent or representative (if any) for an issue of Senior Indebtedness of such
Person.
"Restricted Payment" with respect to any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including
any payment in connection with any merger or consolidation involving
such Person) or similar payment to the direct or indirect holders of
its Capital Stock (other than dividends or distributions payable solely
in its Capital Stock (other than Disqualified Stock) and dividends or
distributions payable solely to the Company or a Restricted Subsidiary,
and other than pro rata dividends or other distributions made by a
Subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a
Subsidiary that is an entity other than a corporation));
(2) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company held by any
Person or of any Capital Stock of a Restricted Subsidiary held by any
Affiliate of the Company (other than a Restricted Subsidiary),
including the exercise of any option to exchange any Capital Stock
(other than into Capital Stock of the Company that is not Disqualified
Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations of such Person (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased
in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the
date of such purchase, repurchase or other acquisition); or
(4) the making of any Investment (other than a Permitted
Investment) in any Person.
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In determining the amount of any Restricted Payment made in
property other than cash, such amount shall be the fair market value of such
property at the time of such Restricted Payment, as determined in good faith by
the Board of Directors of the Company.
"Restricted Subsidiary" means any Subsidiary of the Company
that is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit
facility contained in the Credit Agreement and any other facility or financing
arrangement that Refinances, in whole or in part, any such revolving credit
facility.
"Sale/Leaseback Transaction" means an arrangement relating to
property owned by the Company or a Restricted Subsidiary on the Issue Date or
thereafter acquired by the Company or a Restricted Subsidiary whereby the
Company or a Restricted Subsidiary transfers such property to a Person and the
Company or a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means with respect to any Person any
Indebtedness of such Person secured by a Lien.
"Senior Indebtedness" means with respect to any Person:
(1) Bank Indebtedness of or guaranteed by such Person, whether
outstanding on the Issue Date or thereafter Incurred;
(2) Indebtedness of such Person, whether outstanding on the
Issue Date or thereafter Incurred; and
(3) accrued and unpaid interest (including interest accruing
on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person whether or not a claim for
post-filing interest is allowed or allowable in such proceeding) in
respect of (A) such Bank Indebtedness; (B) indebtedness of such Person
for money borrowed and (C) indebtedness evidenced by notes, debentures,
bonds or other similar instruments for the payment of which such Person
is responsible or liable
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such
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obligations are subordinate in right of payment to the Securities; provided,
however, that Senior Indebtedness shall not include:
(1) any obligation of such Person to any Subsidiary;
(2) any liability for Federal, state, local or other taxes
owed or owing by such Person;
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities);
(4) any Indebtedness of such Person (and any accrued and
unpaid interest in respect thereof) which is subordinate or junior in
any respect to any other Indebtedness or other obligation of such
Person; or
(5) that portion of any Indebtedness which at the time of
Incurrence is Incurred in violation of the Indenture.
"Senior Subordinated Indebtedness" means, with respect to a
Person, the Securities (in the case of the Issuer), the Issuer's Guaranty of the
Dollar Notes, the Dollar Notes, the Company Guaranty (in the case of the
Company), a Subsidiary Guaranty (in the case of a Subsidiary Guarantor) and any
other Indebtedness of such Person that specifically provides that such
Indebtedness is to rank pari passu with the Securities or such Subsidiary
Guaranty, as the case may be, in right of payment and is not subordinated by its
terms in right of payment to any Indebtedness or other obligation of such Person
which is not Senior Indebtedness of such Person.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding
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<PAGE> 35
on the Issue Date or thereafter Incurred) which is subordinate or junior in
right of payment to the Securities, the Issuer's Guaranty of the Dollar Notes,
the Dollar Notes, the Company Guaranty or a Subsidiary Guaranty of such Person,
as the case may be, pursuant to a written agreement to that effect.
"Subsidiary" means, with respect to any Person, any
corporation, limited liability company, association, partnership or other
business entity of which more than 50% of the total voting power of shares of
Voting Stock is at the time owned or controlled, directly or indirectly, by: (1)
such Person; (2) such Person and one or more Subsidiaries of such Person; or (3)
one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each direct or indirect
Subsidiary (other than the Issuer), including Flowserve International Limited,
of the Company that is a guarantor of Senior Indebtedness under the Credit
Agreement and each direct or indirect domestic Restricted Subsidiary that is a
guarantor of any other Indebtedness of the Company.
"Subsidiary Guaranty" means a Guarantee by a Subsidiary
Guarantor of the Issuer's obligations with respect to the Securities.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States
of America, European Government Obligations or direct obligations of
any other European Union member state in which the Company or any of
its Restricted Subsidiaries has operations, or any agency thereof or
obligations guaranteed by the United States of America or any other
European Union member state in which the Company or any of its
Restricted Subsidiaries has operations, or any agency thereof;
(2) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date
of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States, and
which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $50,000,000 (or the foreign currency
equivalent thereof) and has outstanding debt which is rated "A" (or
such similar equivalent rating) or higher by at least one nationally
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<PAGE> 36
recognized statistical rating organization (as defined in Rule 436
under the Securities Act) or any money-market fund sponsored by a
registered broker-dealer or mutual fund distributor;
(3) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (1)
above entered into with a bank meeting the qualifications described in
clause (2) above;
(4) investments in commercial paper, maturing not more than 90
days after the date of acquisition, issued by a corporation (other than
an Affiliate of the Company) organized and in existence under the laws
of the United States of America or any foreign country recognized by
the United States of America with a rating at the time as of which any
investment therein is made of "P-2" (or higher) according to Moody's
Investors Service, Inc. or "A-2" (or higher) according to Standard and
Poor's Ratings Group; and
(5) investments in securities with maturities of six months or
less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, and rated at
least "A" by Standard & Poor's Ratings Group or "A" by Moody's
Investors Service, Inc.
"Term Loan Facility" means the term loan facility contained in
the Credit Agreement and any other facility or financing arrangement that
Refinances in whole or in part any such term loan facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
Section 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
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"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated; provided, however, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.04.
The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (A) the Company could Incur
$1.00 of additional Indebtedness under Section 4.03(a) and (B) no Default shall
have occurred and be continuing. Any such designation by the Board of Directors
of the Company shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Dollar Equivalent" means with respect to any monetary
amount in a currency other than U.S. dollars, at any time for determination
thereof, the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the "Exchange Rates" column under the heading "Currency
Trading" on the date two Business Days prior to such determination.
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Except as described under Section 4.03, whenever it is
necessary to determine whether the Issuer has complied with any covenant in the
Indenture or a Default has occurred and an amount is expressed in a currency
other than U.S. dollars, such amount will be treated as the U.S. Dollar
Equivalent determined as of the date such amount is initially incurred in such
currency.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or one or more Wholly Owned Subsidiaries.
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SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
Defined in
Term Section
---- ----------
<S> <C>
"Affiliate Transaction" ............................................................ 4.07
"Appendix........................................................................... 2.01
"Bankruptcy Law".................................................................... 6.01
"Blockage Notice" .................................................................. 10.03
"Change of Control Offer"........................................................... 4.09(b)
"covenant defeasance option" ....................................................... 8.01(b)
"Custodian"......................................................................... 6.01
"Event of Default".................................................................. 6.01
"Excess Cash Flow Offer"............................................................ 4.10
"Excess Cash Flow Offer Amount"..................................................... 4.10
"Excess Cash Flow Offer Period"..................................................... 4.10
"Excess Cash Flow Purchase Date".................................................... 4.10
"Foreign Jurisdiction Merger........................................................ 5.01
"legal defeasance option"........................................................... 8.01(b)
"Legal Holiday"..................................................................... 13.08
"Obligations"....................................................................... 11.01
"Offer" ............................................................................ 4.06(b)
"Offer Amount" ..................................................................... 4.06(c)(2)
"Offer Period" ..................................................................... 4.06(c)(2)
"pay its Subsidiary Guaranty"....................................................... 14.03
"pay the Securities" ............................................................... 10.03
"Paying Agent" ..................................................................... 2.03
"Payment Blockage Period"........................................................... 10.03
"Payment Default.................................................................... 10.03
"Purchase Date"..................................................................... 4.06(c)(1)
"Registrar" ........................................................................ 2.03
"Successor Company" ................................................................ 5.01
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
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"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
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 has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(9) all references to the date the Securities were originally
issued shall refer to the Issue Date.
SECTION 1.05. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument
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<PAGE> 41
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section.
The ownership of Securities shall be proved by the Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holder of any Security shall bind every future
Holder of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Security.
If the Issuer shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Issuer may, at its option, by or pursuant to a Board resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Issuer shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided, however, that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. Provisions relating to the
Initial Securities, the Private Exchange Securities and the Exchange Securities
are set forth in the
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<PAGE> 42
Rule 144A/Regulation S Appendix attached hereto (the "Appendix") which is hereby
incorporated in and expressly made part of this Indenture. The Initial
Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit 1 to the Appendix which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities, the Private Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Issuer is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Issuer).
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in the Appendix and Exhibit A are part of the terms of this
Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Issuer to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Issuer shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Issuer may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
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The Issuer shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Issuer shall notify
the Trustee of the name and address of any such agent. If the Issuer fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Issuer or any Wholly Owned Subsidiary incorporated or organized within The
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.
The Issuer initially appoints The Bank of New York as
Registrar and Paying Agent and Banque Internationale a Luxembourg as Luxembourg
Paying Agent in connection with the Securities. The Issuer will appoint the
Banque Internationale a Luxembourg as transfer agent in the event the Euro Notes
are issued in definitive registered form.
So long as the Securities are listed on the Luxembourg Stock
Exchange and the rules of such Exchange so require, the Issuer will maintain a
paying agent and transfer agent in Luxembourg. If the Securities are listed on
any other securities exchange, the Issuer will satisfy any requirement at such
securities exchange as to paying agents. So long as the Securities are listed on
the Luxembourg Stock Exchange, any change in the paying agent or transfer agent
shall be notified to holders of Securities by publication of notices to the
holders of the Securities in accordance with the provisions of Section 15.02 of
this Indenture.
SECTION 2.04. Paying Agent To Hold Money in Trust. On each due
date of the principal and interest on any Security, the Issuer shall deposit
with the Paying Agent a sum sufficient to pay such principal and interest when
so becoming due. The Issuer shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Issuer in making any such payment. If the Issuer
or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Issuer at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this
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<PAGE> 44
Section 2.04 the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Issuer shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of this Indenture
and Section 8-401(a) of the Uniform Commercial Code are met. When Securities are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met.
Notwithstanding the foregoing, the Issuer is not required to
register the transfer of any certificated Notes:
(1) for a period of 15 calendar days prior to any date fixed
for the redemption of the Securities;
(2) for a period of 15 calendar days immediately prior to the
date fixed for selection of Securities to be redeemed in part;
(3) for a period of 15 calendar days prior to the record date
with respect to any interest payment date; or
(4) which the Holder has tendered (and not withdrawn) for
repurchase in connection with an offer made pursuant to Section 4.06 or
4.09.
Any such transfer will be made without charge to the Holder,
other than any taxes, duties and governmental charges payable in connection with
such transfer.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost,
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<PAGE> 45
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Issuer, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer
and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss which any of them may suffer if a
Security is replaced. The Issuer and the Trustee may charge the Holder for their
expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Issuer.
SECTION 2.08. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section 2.08 as not outstanding. A Security does not cease to be
outstanding because the Issuer or an Affiliate of the Issuer holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Issuer receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue; provided, however, that in
determining whether the holders of the requisite principal amount of outstanding
Securities are present at a meeting of holders of Securities for quorum purposes
or have consented to or voted in favor of any request, demand, authorization,
direction, notice, consent, waiver, amendment or modification hereunder,
Securities held for the account of the Issuer, any of its subsidiaries or any of
its affiliates shall be disregarded and deemed not to be outstanding, except
that in determining whether the Trustee shall be protected in making such a
determination or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer actually knows to be so owned shall be so disregarded.
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SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Issuer
considers appropriate for temporary Securities. Without unreasonable delay, the
Issuer shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.10. Cancellation. The Issuer at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
dispose of (subject to the record retention requirements of the Exchange Act)
all Securities surrendered for registration of transfer, exchange, payment or
cancellation in accordance with the Trustee's customary practices unless the
Issuer directs the Trustee to deliver canceled Securities to the Issuer. The
Issuer may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Issuer defaults in a
payment of interest on the Securities, the Issuer shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Issuer may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Issuer shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP, ISIN and Common Code Numbers. The Issuer
in issuing the Securities may use "CUSIP", "ISIN and Common Code numbers (if
then generally in use) and, if so, the Trustee shall use "CUSIP", "ISIN" and
Common Code numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 2.13. Issuance of Additional Securities. The Issuer
shall be entitled, subject to compliance with
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Section 4.03, to issue Additional Securities under this Indenture which shall
have identical terms as the Initial Securities issued on the Issue Date, other
than with respect to the date of issuance and issue price. The Initial
Securities issued on the Issue Date, any Additional Securities and all Exchange
Securities or Private Exchange Securities issued in exchange therefor shall be
treated as a single class for all purposes under this Indenture.
With respect to any Additional Securities, the Issuer shall
set forth in a resolution of the Board of Directors and an Officers'
Certificate, a copy of each of which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this
Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Securities; provided, however, that no Additional
Securities may be issued at a price that would cause such Additional
Securities to have "original issue discount" within the meaning of
Section 1273 of the Code; and
(3) whether such Additional Securities shall be Transfer
Restricted Securities and issued in the form of Initial Securities as
set forth in the Appendix to this Indenture or shall be issued in the
form of Exchange Securities as set forth in Exhibit A.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Issuer elects to
redeem Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Issuer shall give each notice to the Trustee provided for
in this Section 3.01 at least 60 days before the redemption date unless the
Trustee consents to a shorter period. Such notice shall be accompanied by an
Officers' Certificate and an Opinion of Counsel from the Issuer to the effect
that such redemption will comply with the conditions herein.
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SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than E.1,000. Securities and portions of them the Trustee selects shall
be in principal amounts of E.1,000 or a whole multiple of E.1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Issuer promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Issuer shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Issuer defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or
portion thereof) called for redemption ceases to accrue on and after
the redemption date;
(7) the ISIN and Common Code numbers; and
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(8) that no representation is made as to the correctness or
accuracy of the CUSIP, ISIN or Common Code number, if any, listed in
such notice or printed on the Securities.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's expense. In such event, the
Issuer shall provide the Trustee with the information required by this Section
3.03.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date). Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Issuer shall deposit with the Paying Agent (or, if the
Issuer or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Issuer to the
Trustee for Cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuer shall execute and the Trustee
shall authenticate for the Holder (at the Issuer's expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Issuer shall promptly
pay the principal of and interest on the Securities on the dates and in the
manner provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest
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then due and the Trustee or the Paying Agent, as the case may be, is not
prohibited from paying such money to the Securityholders on that date pursuant
to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Issuer may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Issuer shall file with the SEC and provide the Trustee and
Securityholders with such annual reports and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. corporation subject to such Sections, such information,
documents and other reports to be so filed and provided at the times specified
for the filing of such information, documents and reports under such Sections
provided, however, that so long as the Company Guaranty is in effect and the
rules and regulations of the SEC would permit the Issuer (if subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act) to satisfy
such reporting requirements with the reports, information and other documents
required to be filed by the Company, the provision of such reports, information
and other documents by the Company hereunder shall be deemed to satisfy the
obligations of the Issuer hereunder. In addition, the Issuer shall furnish to
the Holder of the Securities and to prospective investors, upon the requests of
such Holders, any information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act so long as any Securities are not freely
transferable under the Securities Act. The Issuer also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.03. Limitation on Indebtedness. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company shall be
entitled to Incur Indebtedness, and its Restricted Subsidiaries shall be
entitled to Incur Eligible Indebtedness, in each case if, on the date of such
Incurrence and after giving effect thereto no Default has occurred and is
continuing and, the Consolidated Coverage Ratio exceeds 2.0 to 1 if such
Indebtedness is Incurred prior to September 1, 2003 or 2.25 to 1 if such
Indebtedness is Incurred thereafter.
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(b) Notwithstanding Section 4.03(a), the Company and the
Restricted Subsidiaries will be entitled to Incur any or all of the following
Indebtedness:
(1) Indebtedness Incurred by the Company pursuant to any
Revolving Credit Facility; provided, however, that, immediately after
giving effect to any such Incurrence, the aggregate principal amount of
all Indebtedness Incurred under this clause (1) and then outstanding
does not exceed the greater of (A) $300.0 million and (B) the sum of
(x) 50% of the book value of the inventory of the Company and its
Restricted Subsidiaries and (y) 50% of the book value of the accounts
receivable of the Company and its Restricted Subsidiaries (other than
any accounts receivable constituting Receivables and Related Assets
pledged, sold or otherwise transferred or encumbered in connection with
a Receivables Program), less the sum of all principal payments made
with respect to such Indebtedness pursuant to Section 4.06(a)(3)(A);
(2) Indebtedness Incurred by the Company pursuant to any Term
Loan Facility; provided, however, that, after giving effect to any such
Incurrence, the aggregate principal amount of all Indebtedness Incurred
under this clause (2) and then outstanding does not exceed $750.0
million less the aggregate sum of all principal payments actually made
from time to time after the Issue Date with respect to such
Indebtedness (other than principal payments made from any permitted
Refinancings thereof);
(3) Indebtedness Incurred by a Receivables Subsidiary pursuant
to a Receivables Program; provided, however, that, after giving effect
to any such Incurrence, the aggregate principal amount of all
Indebtedness Incurred under this clause (3) and then outstanding does
not exceed $400.0 million;
(4) Indebtedness owed to and held by the Company or a Wholly
Owned Subsidiary; provided, however, that (A) any subsequent issuance
or transfer of any Capital Stock which results in any such Wholly Owned
Subsidiary ceasing to be a Wholly Owned Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or a Wholly
Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon and (B) if the
Company or the Issuer 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 Securities and Dollar
Notes, respectively;
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(5) the Securities and the Dollar Notes (other than any
Additional Securities and Additional Dollar Notes);
(6) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2), (3), (4) or (5) of this
Section 4.03(b));
(7) Indebtedness of a Person Incurred and outstanding on or
prior to the date on which such Person becomes a Restricted Subsidiary
(including upon merger or consolidation with the Company or any
Restricted Subsidiary) or assumed in connection with the purchase of
assets from another Person (other than Indebtedness Incurred in
connection with, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Person became a Restricted
Subsidiary or such Person or such assets were acquired by the Company);
provided, however, that (A) with respect to any such Indebtedness
Incurred prior to the first anniversary of the Issue Date, such
Indebtedness is in an aggregate principal amount which, when taken
together with all other Indebtedness Incurred pursuant to this clause
(7), does not exceed $50.0 million or (B) on the date of such
acquisition and after giving pro forma effect thereto, the Company
would have been able to Incur at least $1.00 of additional Indebtedness
pursuant to Section 4.03(a);
(8) Indebtedness of the Company or any of its Restricted
Subsidiaries attributable to Capital Lease Obligations, or Incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including any Indebtedness assumed in connection with
the acquisition of any such assets, in an aggregate principal amount
which, when taken together with all other Indebtedness of the Company
or any of its Restricted Subsidiaries Incurred pursuant to this clause
(8) and then outstanding, does not exceed $25.0 million (including any
Refinancing Indebtedness with respect thereto);
(9) Indebtedness under industrial revenue bonds in an
aggregate principal amount which, when taken together with all other
Indebtedness of the Company or any of its Restricted Subsidiaries
Incurred pursuant to this clause (9) and then outstanding, does not
exceed $20.0 million;
(10) Indebtedness Incurred by Foreign Restricted
Subsidiaries in an aggregate principal amount which,
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when taken together with all other Indebtedness of Foreign Restricted
Subsidiaries Incurred pursuant to this clause (10) and then
outstanding, does not exceed $25.0 million;
(11) Indebtedness of the Company, whether secured
or unsecured, consisting of Guarantees of Permitted
Employee Stock Purchase Loans;
(12) Indebtedness or other obligations solely in respect of
worker's compensation claims, self-insurance obligations and surety,
appeal and performance bonds entered into in the ordinary course of
business of the Company and its Restricted Subsidiaries;
(13) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to Section 4.03(a) or pursuant to clause (5), (6) or
(7) of this Section 4.03(b) or this clause (13); provided, however,
that to the extent such Refinancing Indebtedness directly or indirectly
Refinances Indebtedness of a Subsidiary Incurred pursuant to clause
(7), such Refinancing Indebtedness shall be Incurred only by such
Subsidiary;
(14) Hedging Obligations under or with respect to Interest
Rate Agreements, Currency Agreements or Commodity Agreements entered
into in the ordinary course of business and not for the purpose of
speculation;
(15) Indebtedness consisting of the Company Guaranty, the
Issuer's Guaranty of the Dollar Notes and each Subsidiary Guaranty of a
Subsidiary Guarantor;
(16) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business, provided that the Indebtedness is satisfied within
five business days of Incurrence;
(17) Indebtedness of the Company or any Restricted Subsidiary
consisting of indemnification, adjustment of purchase price or similar
obligations, in each case incurred in connection with the disposition
of any assets of the Company or any Restricted Subsidiary;
(18) Indebtedness consisting of the Guarantee by (i) the
Company of any Indebtedness of a Restricted Subsidiary that was
permitted to be Incurred by another
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provision of this Section 4.03 and (ii) any Restricted Subsidiary of
the Company of Indebtedness of the Company that was permitted to be
Incurred by another provision of this Section 4.03; and
(19) Indebtedness of the Company in an aggregate principal
amount which, when taken together with all other Indebtedness of the
Company outstanding on the date of such Incurrence (other than
Indebtedness permitted by clauses (1) through (18) of this Section
4.03(b) or Section 4.03(a) does not exceed $25.0 million.
(c) Notwithstanding the foregoing, none of the Company, the
Issuer nor any Subsidiary Guarantor will Incur any Indebtedness pursuant to
Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to
Refinance any Subordinated Obligations of the Company, the Issuer or any
Subsidiary Guarantor unless such Indebtedness shall be subordinated to the
Company Guaranty, the Securities or the applicable Subsidiary Guaranty to at
least the same extent as such Subordinated Obligations.
(d) For purposes of determining compliance with this Section
4.03, (1) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described above, the Issuer, in its sole
discretion, will classify such item of Indebtedness at the time of Incurrence
and only be required to include the amount and type of such Indebtedness in one
of the above clauses and (2) the Issuer will be entitled to divide and classify
an item of Indebtedness in more than one of the types of Indebtedness described
above.
(e) Notwithstanding Section 4.03(a) or 4.03(b), none of the
Company, the Issuer nor any Subsidiary Guarantor will Incur (1) any Indebtedness
if such Indebtedness is subordinate or junior in ranking in any respect to any
Senior Indebtedness of such Person, unless such Indebtedness is Senior
Subordinated Indebtedness or is expressly subordinated in right of payment to
Senior Subordinated Indebtedness of such Person or (2) any Secured Indebtedness
that is not Senior Indebtedness of such Person unless contemporaneously
therewith such Person makes effective provision to secure the Securities equally
and ratably with such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien.
(f) For purposes of determining compliance with any U.S.
dollar or Euro denominated restriction on the Incurrence of Indebtedness where
the Indebtedness Incurred is denominated in a different currency, the amount of
such Indebtedness will be the U.S. Dollar Equivalent or Euro
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Equivalent, as the case may be, determined on the date of the Incurrence of such
Indebtedness; provided, however, that if such Indebtedness denominated in a
different currency is subject to a Currency Agreement with respect to U.S.
dollars or Euros, as the case may be, covering all principal, premium, if any,
and interest payable on such Indebtedness, the amount of such Indebtedness
expressed in U.S. dollars or Euros will be as provided in such Currency
Agreement. The principal amount of any Refinancing Indebtedness Incurred in the
same currency as the Indebtedness being Refinanced will be the Euro Equivalent
or U.S. Dollar Equivalent, as appropriate, of the Indebtedness Refinanced,
except to the extent that (i) such U.S. Dollar Equivalent or Euro Equivalent was
determined based on a Currency Agreement, in which case the Refinancing
Indebtedness will be determined in accordance with the preceding sentence, and
(ii) the principal amount of the Refinancing Indebtedness exceeds the principal
amount of the Indebtedness being Refinanced, in which case the U.S. Dollar
Equivalent or Euro Equivalent of such excess, as appropriate, will be determined
on the date such Refinancing Indebtedness is Incurred.
SECTION 4.04. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make a Restricted Payment if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not entitled to Incur an additional $1.00
of Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum of
(without duplication):
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the
beginning of the fiscal quarter during which the Issue Date
occurs to the end of the most recent fiscal quarter for which
internal financial statements are available on or prior to the
date of such Restricted Payment (or, in case such Consolidated
Net Income shall be a deficit, minus 100% of such deficit);
plus
(B) 100% of the aggregate Net Cash Proceeds received
by the Company from the issuance or sale of, or cash capital
contribution in respect of,
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its Capital Stock (other than Disqualified Stock) subsequent
to the Issue Date (other than an issuance or sale to a
Subsidiary of the Company and other than an issuance or sale
to an employee stock ownership plan or to a trust established
by the Company or any of its Subsidiaries for the benefit of
their employees) and 100% of the fair market value (as
determined in good faith by resolution of the Board of
Directors) of property (other than cash) that would constitute
Temporary Cash Investments or used in a Related Business and
received by the Company or a Restricted Subsidiary subsequent
to the Issue Date in exchange for or as a contribution in
respect of its Capital Stock (other than Disqualified Stock)
subsequent to the Issue Date (other than (i) an issuance to or
a capital contribution by a Subsidiary of the Company or (ii)
an issuance to or a capital contribution by an employee stock
ownership plan or to a trust established by the Company or any
of its subsidiaries for the benefit of their employees or
(iii) property that was financed with loans from the Company
or any Restricted Subsidiary); plus
(C) an amount equal to the sum of (x) the net
reduction in the Investments (other than Permitted
Investments) made by the Company or any Restricted Subsidiary
in any Person resulting from repurchases, repayments or
redemptions of such Investments by such Person, proceeds
realized on the sale of such Investments, and proceeds
representing the return of capital (to the extent not included
in Consolidated Net Income), in each case received by the
Company or any Restricted Subsidiary, and (y) to the extent
such Person is an Unrestricted Subsidiary, the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of such
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case
of any such Person or Unrestricted Subsidiary, the amount of
Investments (excluding Permitted Investments) previously made
(and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
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(b) The provisions of Section 4.04(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds
of the substantially concurrent sale of, or made by exchange for,
Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or to a trust established by the Company
or any of its Subsidiaries for the benefit of their employees) or a
substantially concurrent cash capital contribution received by the
Company in respect of its Capital Stock (other than Disqualified
Stock); provided, however, that (A) such Restricted Payment shall be
excluded in the calculation of the amount of Restricted Payments and
(B) the Net Cash Proceeds from such sale or such cash capital
contribution (to the extent so used for such Restricted Payment) shall
be excluded from the calculation of amounts under Section 4.04(a)(3)(B)
and under clause (4) below;
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent
sale of, Indebtedness which is permitted to be Incurred pursuant to
Section 4.03; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value
shall be excluded in the calculation of the amount of Restricted
Payments;
(3) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 4.04; provided, however, that at the
time of payment of such dividend, no other Default shall have occurred
and be continuing (or result therefrom); provided further, however,
that such dividend shall be included in the calculation of the amount
of Restricted Payments;
(4) so long as no Default has occurred and is continuing, the
repurchase or other acquisition of shares of Capital Stock of the
Company or any of its Subsidiaries (A) from employees, former
employees, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), (B) in the open market to
the extent such shares are acquired to satisfy a current obligation to
deliver shares in connection with the exercise of stock
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options or similar rights, in each case pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or
sell, shares of such Capital Stock; provided, however, that the
aggregate amount of such repurchases and other acquisitions shall not
exceed in any calendar year the sum of (x) $5.0 million plus (y) the
Net Cash Proceeds from the sale of Capital Stock to employees or
directors of the Company (including pursuant to the exercise of stock
options) that occur during such calendar year (to the extent such Net
Cash Proceeds are not applied to the payment of a Restricted Payment
pursuant to clause (1) above); provided further, however, that (i) such
repurchases and other acquisitions shall be excluded in the calculation
of the amount of Restricted Payments and (ii) the Net Cash Proceeds
from such sales described in clause (y) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B); or
(5) Restricted Payments not exceeding $15.0 million in the
aggregate; provided, however, that (A) at the time of such Restricted
Payments, no Default shall have occurred and be continuing (or result
therefrom) and (B) such Restricted Payments shall be included in the
calculation of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the Company, (b) make any loans or advances to the Company
or (c) transfer any of its property or assets to the Company, except:
(1) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date, including this Indenture,
the Dollar Notes Indenture and the Credit Agreement as in effect on the
Issue Date;
(2) any encumbrance or restriction with respect to a
Receivables Subsidiary pursuant to a Receivables Program of such
Receivables Subsidiary;
(3) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement
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relating to any Indebtedness Incurred by such Restricted Subsidiary on
or prior to the date on which such Restricted Subsidiary was acquired
by the Company (other than Indebtedness Incurred as consideration in,
or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company) and outstanding
on such date;
(4) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in Section 4.05 (1), (2), (3) or this clause (4)
or contained in any amendment to an agreement referred to in Section
4.05 (1), (2), (3) or this clause (4); provided, however, that the
encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such refinancing agreement or amendment
are, in the good faith judgment of the Board of Directors of the
Company, no less favorable, taken as a whole, to the Securityholders
than encumbrances and restrictions with respect to such Restricted
Subsidiary contained in such predecessor agreements;
(5) any such encumbrance or restriction consisting of
customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease or the property leased thereunder;
(6) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness, or under
letters of credit or bank guarantees, of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of, or the grant of
security over, the property subject to such security agreements,
mortgages, letters of credit or bank guarantees;
(7) any restriction with respect to a Restricted Subsidiary
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(8) purchase money obligations (including Capital Lease
Obligations) for property acquired in the ordinary course of business
that impose restrictions on the property so acquired of the nature
described in clause (c) above;
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(9) provisions with respect to the disposition or distribution
of assets or property in joint venture agreements and other similar
agreements in the ordinary course of business; and
(10) any such encumbrance or restriction with respect to a
Foreign Restricted Subsidiary pursuant to an agreement governing
Indebtedness Incurred by such Foreign Restricted Subsidiary.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Disposition unless: (1) the
Company or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value (including as to the
value of all non-cash consideration), as determined in good faith by the Board
of Directors, of the shares and assets subject to such Asset Disposition; (2) at
least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or cash equivalents; and (3) an
amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or such Restricted Subsidiary, as the case may be) (A)
first, to the extent the Company elects (or is required by the terms of any
Indebtedness), to prepay, repay, redeem or purchase Senior Indebtedness of the
Company or Indebtedness (other than any Disqualified Stock) of a Restricted
Subsidiary (in each case other than Indebtedness owed to the Company or an
Affiliate of the Company) within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available Cash; (B) second, to the
extent of the balance of such Net Available Cash after application in accordance
with clause (A), to the extent the Company elects, to acquire Additional Assets
within one year (or enter into a binding commitment therefor within such period
and acquire such Additional Assets within 18 months) from the later of the date
of such Asset Disposition or the receipt of such Net Available Cash; and (C)
third, to the extent of the balance of such Net Available Cash after application
in accordance with clauses (A) and (B), to make an offer to the holders of the
Dollar Notes and the Securities (and to holders of other Senior Subordinated
Indebtedness of the Company or the Issuer designated by the Company) to
purchase, on a pro rata basis, Dollar Notes and Securities (and such other
Senior Subordinated Indebtedness of the Company or the Issuer) pursuant to the
conditions of Section 4.06(b); provided, however, that in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C)
above, the Company or such Restricted Subsidiary shall permanently retire such
Indebtedness and shall cause the
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related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid or purchased. Notwithstanding the
foregoing provisions of this Section 4.06, (i) the Company and the Restricted
Subsidiaries shall not be required to apply any Net Available Cash in accordance
with this Section 4.06 except to the extent that the aggregate Net Available
Cash from all Asset Dispositions which are not applied in accordance with this
Section 4.06 exceeds $10.0 million , and (ii) to the extent any Asset
Disposition constitutes the disposition of Consent Decree Assets, the Company
shall be required to apply the Net Available Cash from such Asset Disposition
pursuant to Section 4.06 (a)(3)(A) and the Company shall not be required to
comply with Section 4.06 (a)(1). Pending application of Net Available Cash
pursuant to this Section 4.06, such Net Available Cash shall be invested in
Temporary Cash Investments or applied to temporarily reduce revolving credit
indebtedness.
For the purposes of this Section 4.06, the following are
deemed to be cash or cash equivalents: (1) the assumption of Indebtedness of the
Company or any Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on such Indebtedness in connection with
such Asset Disposition; and (2) securities received by the Company or any
Restricted Subsidiary from the transferee that are promptly converted by the
Company or such Restricted Subsidiary into cash.
In addition, the Company may elect to deem Additional Assets
(determined based on the fair market value of such assets) as cash and cash
equivalents for purposes of this Section 4.06; provided, however, that such
Additional Assets were acquired for fair market value as part of the transaction
constituting an Asset Disposition; and provided further, however, that such
Additional Assets will be deemed to have been acquired in accordance with
Section 4.06(a)(3)(B).
(b) In the event of an Asset Disposition that requires the
purchase of the Securities and Dollar Notes (and other Senior Subordinated
Indebtedness of the Company or the Issuer) pursuant to Section 4.06(a)(3)(C)
above, the Company will purchase, on a pro rata basis, Securities and Dollar
Notes tendered pursuant to an offer (the "Offer") by the Company for the
Securities (and such other Senior Subordinated Indebtedness of the Company and
the Issuer, as applicable) at a purchase price of 100% of their respective
principal amount (or, in the event such other Senior Subordinated Indebtedness
of the Company or the Issuer, as applicable, was issued with significant
original issue discount, 100% of the accreted value thereof), without premium,
plus accrued but unpaid interest (or, in respect of
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such other Senior Subordinated Indebtedness of the Company or the Issuer, such
lesser price, if any, as may be provided for by the terms of such Senior
Subordinated Indebtedness) in accordance with the procedures (including
prorating in the event of oversubscription) set forth in Section 4.06(c). If the
aggregate purchase price of the Securities and Dollar Notes (and other Senior
Subordinated Indebtedness of the Company or the Issuer) tendered exceeds the Net
Available Cash allotted to their purchase, the Company will select the
Securities and Dollar Notes(and other Senior Subordinated Indebtedness of the
Company or the Issuer) to be purchased on a pro rata basis but in round
denominations, which in the case of the Securities will be denominations of
E.1,000 principal amount or multiples thereof and in the case of the Dollar
Notes will be $1,000 principal amount or multiples thereof. The Company shall
not be required to make such an offer to purchase Securities and Dollar Notes
(and other Senior Subordinated Indebtedness of the Company and the Issuer)
pursuant to this Section 4.06 if the Net Available Cash available therefor is
less than $10.0 million (which lesser amount shall be carried forward for
purposes of determining whether such an offer is required with respect to the
Net Available Cash from any subsequent Asset Disposition).
(c)(1) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder and Dollar Notes Holder,
and, so long as the Securities are listed on the Luxembourg Stock Exchange,
publish in a Luxembourg newspaper of general circulation, a written notice
stating that the Holder and Dollar Notes Holder may elect to have his Securities
and Dollar Notes purchased by the Company either in whole or in part (subject to
prorating as described in Section 4.06(b) in the event the Offer is
oversubscribed) in integral multiples of E.1,000 of principal amount and $1,000
principal amount, respectively, at the applicable purchase price. The notice
shall specify a purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Purchase Date") and shall contain such information
concerning the business of the Company which the Company in good faith believes
will enable such Holders and Dollar Notes Holders to make an informed decision
(which at a minimum will include (A) the most recently filed Annual Report on
Form 10-K (including audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form 10-Q and any Current
Report on Form 8-K of the Company filed subsequent to such Quarterly Report
which may be incorporated by reference, other than Current Reports describing
Asset Dispositions otherwise described in the offering materials (or
corresponding successor reports), (B) a description of
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material developments in the Company's business subsequent to the date of the
latest of such Reports, and (C) if material, appropriate pro forma financial
information) and all instructions and materials necessary to tender Securities
and Dollar Notes pursuant to the Offer, together with the information contained
in clause (3).
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided below, the Company shall deliver
to the Trustee an Officers' Certificate as to (A) the amount of the Offer (the
"Offer Amount"), including information as to any other Senior Subordinated
Indebtedness of the Company or the Issuer included in the Offer, (B) the
allocation of the Net Available Cash from the Asset Dispositions pursuant to
which such Offer is being made and (C) the compliance of such allocation with
the provisions of Section 4.06(a) and (b). On such date, the Company shall also
irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust) in Temporary
Cash Investments, maturing on the last day prior to the Purchase Date or on the
Purchase Date if funds are immediately available by open of business, an amount
equal to the Offer Amount to be held for payment in accordance with the
provisions of this Section 4.06. If the Offer includes other Senior Subordinated
Indebtedness, the deposit described in the preceding sentence may be made with
any other paying agent pursuant to arrangements satisfactory to the Trustee.
Upon the expiration of the period for which the Offer remains open (the "Offer
Period"), the Company shall deliver to the Trustee for cancellation the
Securities and Dollar Notes or portions thereof which have been properly
tendered to and are to be accepted by the Company. The Trustee shall, on the
Purchase Date, mail or deliver payment (or cause the delivery of payment) to
each tendering Holder and the Dollar Notes Holder in the amount of the purchase
price. In the event that the aggregate purchase price of the Securities and
Dollar Notes delivered by the Company to the Trustee is less than the Offer
Amount applicable to the Securities and Dollar Notes, the Trustee shall deliver
the excess to the Company immediately after the expiration of the Offer Period
for application by the Company in any manner permitted by this Indenture.
(3) Holders and Dollar Notes Holders electing to have either a
Security or a Dollar Note purchased shall be required to surrender the Security
or a Dollar Note, with an appropriate form duly completed, to the Company at the
address specified in the notice at least three Business Days prior to the
Purchase Date. Holders and Dollar Notes Holders shall be entitled to withdraw
their election if the Trustee or the Company receives not later than one
Business Day prior to the Purchase Date, a telex, facsimile
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transmission or letter setting forth the name of the Holder or Dollar Notes
Holder, the principal amount of the Security or Dollar Note which was delivered
for purchase by the Holder or Dollar Notes Holder and a statement that such
Holder or Dollar Notes Holder is withdrawing his election to have such Security
or Dollar Notes purchased. Holders or Dollar Notes Holders whose Securities or
Dollar Notes are purchased only in part shall be issued new Securities or Dollar
Notes equal in principal amount to the unpurchased portion of the Securities or
Dollar Notes surrendered.
(4) At the time the Company delivers Securities or Dollar
Notes to the Trustee which are to be accepted for purchase, the Company shall
also deliver an Officers' Certificate stating that such Securities or Dollar
Notes are to be accepted by the Company pursuant to and in accordance with the
terms of this Section 4.06. A Security or Dollar Note shall be deemed to have
been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder or Dollar
Notes Holder.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities or Dollar
Notes pursuant to this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.06,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.06 by
virtue of its compliance with such securities laws or regulations.
SECTION 4.07. Limitation on Affiliate Transactions. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property, employee compensation arrangements or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless: (1) the terms of the Affiliate Transaction are
no less favorable to the Company or such Restricted Subsidiary than those that
could be obtained at the time of the Affiliate Transaction in arm's-length
dealings with a Person who is not an Affiliate; (2) if such Affiliate
Transaction involves an amount in excess of $10.0 million, the terms of the
Affiliate Transaction are set forth in writing and a majority of the
non-employee directors of the Company disinterested with respect to such
Affiliate Transactions have determined in good faith that the criteria set forth
in clause (1) are satisfied and have approved the relevant Affiliate Transaction
as evidenced by
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a resolution of the Board of Directors of the Company; and (3) if such Affiliate
Transaction involves an amount in excess of $20.0 million, the Board of
Directors of the Company shall also have received a written opinion from (A) an
investment banking firm of national prominence or (B) an accounting or appraisal
firm nationally recognized in making such determinations, in each case that is
not an Affiliate of the Company to the effect that such Affiliate Transaction is
fair, from a financial standpoint, to the Company and its Restricted
Subsidiaries.
(b) The provisions of Section 4.07(a) shall not prohibit: (1)
any Investment (other than a Permitted Investment) or other Restricted Payment,
in each case permitted to be made pursuant to Section 4.04; (2) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options, stock
ownership plans or other similar incentive arrangements approved by the Board of
Directors of the Company; (3) loans or advances to employees in the ordinary
course of business in accordance with the past practices of the Company or its
Restricted Subsidiaries, but in any event not to exceed $5.0 million in the
aggregate outstanding at any one time; (4) guarantees of Permitted Employee
Stock Purchase Loans; (5) the payment of reasonable fees to directors of the
Company and its Restricted Subsidiaries who are not employees of the Company or
its Restricted Subsidiaries; (6) any transaction with a Restricted Subsidiary or
joint venture or similar entity which would constitute an Affiliate Transaction
solely because the Company or a Restricted Subsidiary owns an equity interest in
or otherwise controls such Restricted Subsidiary, joint venture or similar
entity; (7) the issuance or sale of any Capital Stock (other than Disqualified
Stock) of the Company; (8) any Receivables Program of the Company or a
Restricted Subsidiary; (9) customary directors' and officers' indemnification
arrangements; and (10) any agreement with the Company or any Restricted
Subsidiary as in effect as of the Issue Date and any amendment or replacement
thereto or any transaction contemplated thereby so long as such amendment or
replacement agreement is not more disadvantageous to the Company and its
Restricted Subsidiaries than the original agreement as in effect on the Issue
Date.
SECTION 4.08. Limitation on the Sale or Issuance of Capital
Stock of Restricted Subsidiaries. The Company (1) shall not, and shall not
permit any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose
of (but excluding any pledge of such Capital Stock otherwise permitted by this
Indenture) any Capital Stock of any Restricted Subsidiary to any Person (other
than the Company
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or a Wholly Owned Subsidiary), and (2) shall not permit any Restricted
Subsidiary to issue any of its Capital Stock (other than, if necessary, shares
of its Capital Stock constituting directors' or other legally required
qualifying shares) to any Person (other than to the Company or a Wholly Owned
Subsidiary), unless (A) immediately after giving effect to such issuance, sale
or other disposition, neither the Company nor any of its Subsidiaries own any
Capital Stock of such Restricted Subsidiary; (B) immediately after giving effect
to such issuance, sale or other disposition, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary and any Investment in such Person
remaining after giving effect thereto would have been permitted to be made under
Section 4.04 if made on the date of such issuance, sale or other disposition; or
(C) the Company concurrently acquires sufficient shares of Capital Stock of such
Restricted Subsidiary to at least maintain the same percentage ownership
interest it had prior to the transaction.
Notwithstanding the foregoing, the issuance or sale of shares
of Capital Stock of any Restricted Subsidiary of the Company will not violate
the provisions of the immediately preceding sentence if such shares are issued
or sold in connection with:
(i) the formation or capitalization of a Restricted
Subsidiary, or
(ii) a single transaction or a series of substantially
contemporaneous transactions whereby such Restricted Subsidiary becomes
a Restricted Subsidiary of the Company by reason of the acquisition of
securities or assets from another Person.
SECTION 4.09. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require that the Issuer
purchase such Holder's Securities at a purchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase (subject to the right of holders of record on the relevant
record date to receive interest on the relevant interest payment date), in
accordance with the terms contemplated in Section 4.09(b). In the event that at
the time of such Change of Control the terms of the Senior Indebtedness of the
Company restrict or prohibit the repurchase of Securities pursuant to this
Section 4.09, then prior to the mailing of the notice to Holders provided for in
Section 4.09(b) below but in any event within 30 days following any Change of
Control, the Company shall (1) repay in full all such Senior Indebtedness or
(ii) obtain the requisite consent under the agreements
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governing such Senior Indebtedness to permit the repurchase of the Securities as
provided for in Section 4.09(b).
(b) Within 30 days following any Change of Control, the Issuer
shall mail a notice to each Holder with a copy to the Trustee (the "Change of
Control Offer") and, so long as the Securities are listed on the Luxembourg
Stock Exchange, publish in a Luxembourg newspaper of general circulation,
stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Issuer to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on the relevant
record date to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change
of Control (including information with respect to pro forma historical
income, cash flow and capitalization, each after giving effect to such
Change of Control);
(3) the purchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer, consistent with
this Section 4.09, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Issuer at the address specified in the notice at least three Business Days
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Issuer receives not later than one Business Day prior to
the purchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Issuer under this Section 4.09 shall be delivered by the Issuer to the Trustee
for cancellation, and the Issuer shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
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(e) Notwithstanding the foregoing provisions of this Section
4.09, the Issuer shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.09 applicable to a Change of Control Offer made by the Issuer
and purchases all Securities validly tendered and not withdrawn under such
Change of Control Offer.
(f) The Issuer shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section 4.09. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.09, the Issuer shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.09 by virtue of
its compliance with such securities laws or regulations.
SECTION 4.10. Excess Cash Flow Repurchase Offer. (a) If the
Company has Excess Cash Flow for any fiscal year (commencing with the fiscal
year ending December 31, 2001), no later than the 120th day following the end of
such fiscal year, the Company shall apply an amount equal to 50% of the Excess
Cash Flow for such fiscal year: (1) first, to the extent the Company elects (or
is required by the terms of any Indebtedness), to prepay, repay, redeem or
purchase (and permanently reduce the commitments thereunder) Senior Indebtedness
of the Company with such percentage of Excess Cash Flow; (2) second, to the
extent of the balance of such percentage of Excess Cash Flow after application
in accordance with clause (1), to make an offer to the holders of the Securities
and Dollar Notes (and to holders of other Senior Subordinated Indebtedness of
the Company or the Issuer designated by the Company) to purchase, on a pro rata
basis, Securities and Dollar Notes (and such other Senior Subordinated
Indebtedness of the Company or the Issuer) pursuant to and subject to the
conditions contained in this Section 4.10 and in Section 4.10 of the Dollar
Notes Indenture (an "Excess Cash Flow Offer"); and (3) third, to the extent of
the balance of such percentage of Excess Cash Flow after application in
accordance with clause (1) or (2) above, to any other application or use not
prohibited by this Indenture; provided, however, that in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to clause (1) above,
the Company shall permanently retire such Indebtedness and shall cause the
related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid or purchased; and provided, further,
that no Excess Cash Flow
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Offer shall be required to be made if the Company's Leverage Ratio is less than
3.0 to 1.0 on the last day of such fiscal year.
(b) In the event of an Excess Cash Flow Offer, the Company
will be required to purchase, on a pro rata basis, Securities and Dollar Notes
tendered pursuant to an offer by the Company for the Securities and Dollar notes
(and other Senior Subordinated Indebtedness of the Company and the Issuer, as
applicable) at a purchase price of 100% of their respective principal amount
(or, in the event such other Senior Subordinated Indebtedness was issued with
significant original issue discount, 100% of the accreted value thereof),
without premium, plus accrued but unpaid interest (or, in respect of such Senior
Subordinated Indebtedness, such lesser price, if any, as may be provided for by
the terms of such Senior Subordinated Indebtedness) in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
Section 4.10(c). If the aggregate purchase price of the Securities and Euro
Notes (and other Senior Subordinated Indebtedness of the Company or the Issuer)
tendered pursuant to such offer is less than the Excess Cash Flow allotted to
their purchase, the Company will be entitled to apply the remaining Excess Cash
Flow in accordance with clause (a)(3) above. The Company shall not be required
to make an Excess Cash Flow Offer to purchase Securities and Dollar Notes (and
other Senior Subordinated Indebtedness) pursuant to Section 4.10(a) if the
Excess Cash Flow available therefor is less than $5.0 million (which lesser
amount shall be carried forward for purposes of determining whether such an
offer is required with respect to the Excess Cash Flow in any subsequent fiscal
year).
(c)(1) Promptly, and in any event within 10 days after the
Company becomes obligated to make an Excess Cash Flow Offer, the Company shall
deliver to the Trustee and send, by first-class mail to each Holder and Dollar
Notes Holder, and, so long as the Securities are listed on the Luxembourg Stock
Exchange, publish in a Luxembourg newspaper of general circulation, a written
notice stating that the Holder and Dollar Notes Holder may elect to have his
Securities and Dollar Notes purchased by the Company either in whole or in part
(subject to prorating as described in Section 4.10(b) in the event the Excess
Cash Flow Offer is oversubscribed) in integral multiples of E.1,000 of
principal amount and $1,000 principal amount, respectively, at the applicable
purchase price. The notice shall specify a purchase date not less than 30 days
nor more than 60 days after the date of such notice (the "Excess Cash Flow
Purchase Date") and shall contain such information concerning the business of
the Company which the Company in good faith believes will enable such Holders
and Dollar
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Notes Holders to make an informed decision (which at a minimum will include (A)
the most recently filed Annual Report on Form 10-K (including audited
consolidated financial statements) of the Company, the most recent subsequently
filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report which may be incorporated by
reference (or corresponding successor reports), and (B) a description of
material developments in the Company's business subsequent to the date of the
latest of such Reports) and all instructions and materials necessary to tender
Securities and Dollar Notes pursuant to the Excess Cash Flow Offer, together
with the information contained in clause (3).
(2) Not later than the date upon which written notice of an
Excess Cash Flow Offer is delivered to the Trustee as provided below, the
Company shall deliver to the Trustee an Officers' Certificate as to (A) the
amount of the Excess Cash Flow Offer (the "Excess Cash Flow Offer Amount"),
including information as to any other Senior Subordinated Indebtedness of the
Company or the Issuer included in the Excess Cash Flow Offer, (B) the percentage
of the Excess Cash Flow remaining after application in accordance with Section
4.10(a)(1) with respect to which such Excess Cash Flow Offer is being made and
(C) the compliance of such allocation with the provisions of Section 4.10(a) and
(b). On such date, the Company shall also irrevocably deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) in Temporary Cash Investments, maturing on the last
day prior to the Excess Cash Flow Purchase Date or on the Excess Cash Flow
Purchase Date if funds are immediately available by open of business, an amount
equal to the Excess Cash Flow Offer Amount to be held for payment in accordance
with the provisions of this Section 4.10. If the Excess Cash Flow Offer includes
other Senior Subordinated Indebtedness, the deposit described in the preceding
sentence may be made with any other paying agent pursuant to arrangements
satisfactory to the Trustee. Upon the expiration of the period for which the
Excess Cash Flow Offer remains open (the "Excess Cash Flow Offer Period"), the
Company shall deliver to the Trustee for cancellation the Securities and Dollar
Notes or portions thereof which have been properly tendered to and are to be
accepted by the Company. The Trustee shall, on the Purchase Date, mail or
deliver payment (or cause the delivery of payment) to each tendering Holder and
the Dollar Notes Holder in the amount of the purchase price. In the event that
the aggregate purchase price of the Securities and Dollar Notes delivered by the
Company to the Trustee is less than the Excess Cash Flow Offer Amount applicable
to the Securities and Dollar Notes, the Trustee shall deliver the excess to the
Company immediately after the expiration of
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the Excess Cash Flow Offer Period for application by the Company in any manner
permitted by this Indenture.
(3) Holders and Dollar Note Holders electing to have either a
Security or Dollar Note purchased shall be required to surrender the Security or
Dollar Note, with an appropriate form duly completed, to the Company at the
address specified in the notice at least three Business Days prior to the Excess
Cash Flow Purchase Date. Holders and Dollar Notes Holders shall be entitled to
withdraw their election if the Trustee or the Company receives not later than
one Business Day prior to the Excess Cash Flow Purchase Date, a telex, facsimile
transmission or letter setting forth the name of the Holder or Dollar Notes
Holder, the principal amount of the Security or Dollar Note which was delivered
for purchase by the Holder or Dollar Notes Holder and a statement that such
Holder or Dollar Notes Holder is withdrawing his election to have such Security
or Dollar Notes purchased. Holders or Dollar Notes Holders whose Securities or
Dollar Notes are purchased only in part shall be issued new Securities or Dollar
Notes equal in principal amount to the unpurchased portion of the Securities or
Dollar Notes surrendered.
(4) At the time the Company delivers Securities or Dollar
Notes to the Trustee which are to be accepted for purchase, the Company shall
also deliver an Officers' Certificate stating that such Securities or Dollar
Notes are to be accepted by the Company pursuant to and in accordance with the
terms of this Section 4.10. A Security or Dollar Note shall be deemed to have
been accepted for purchase at the time the Trustee, directly or through an
agent, mails or delivers payment therefor to the surrendering Holder or Dollar
Notes Holder.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities or Euro
Notes pursuant to this Section 4.10. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.10,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section 4.10 by
virtue of its compliance with such securities laws or regulations.
SECTION 4.11. Future Guarantors. The Issuer and the Company
shall cause each domestic Restricted Subsidiary that Guarantees any Indebtedness
of the Company, the Issuer or any other Subsidiary Guarantor to, at the same
time, execute and deliver to the Trustee a Guaranty Agreement pursuant to which
such Restricted Subsidiary will Guarantee
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payment of the Securities on the same terms and conditions as those set forth in
Article 11 of this Indenture.
SECTION 4.12. Additional Amounts. All payments made under or
with respect to the Securities shall be made free and clear of and without
withholding or deduction for or on account of any present or future tax, duty,
levy, impost, assessment or other governmental charge (including penalties,
interest and other liabilities related thereto) (hereinafter "Taxes") imposed or
levied by or on behalf of the government of The Netherlands or any political
subdivision or any authority or agency therein or thereof having power to tax,
or within any other jurisdiction in which the Issuer is organized or is
otherwise resident for tax purposes or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless it is required
to withhold or deduct Taxes by law or by the interpretation or administration
thereof.
If the Issuer is so required to withhold or deduct any amount
for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any
payment made under or with respect to the Securities, the Issuer shall pay such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount received by the Holders (including Additional Amounts) after such
withholding or deduction will not be less than the amount the Holders would have
received if such Taxes had not been withheld or deducted; provided, however,
that the foregoing obligation to pay Additional Amounts does not apply to (1)
any Taxes that would not have been so imposed but for the existence of any
present or former connection between the relevant Holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power
over the relevant Holder, if the relevant Holder is an estate, nominee, trust or
corporation) and the Relevant Taxing Jurisdiction (other than the mere receipt
of such payment or the ownership or holding outside of The Netherlands of such
Security); or (2) any estate, inheritance, gift, sales, excise, transfer,
personal property tax or similar tax, assessment or governmental charge; nor
shall the Issuer be required to pay Additional Amounts (a) if the payment could
have been made without such deduction or withholding if the beneficiary of the
payment had presented the Security for payment within 30 days after the date on
which such payment or such Security became due and payable or the date on which
payment thereof is duly provided for, whichever is later (except to the extent
that the Holder would have been entitled to Additional Amounts had the Security
been presented on the last day of such 30 day period), (b) with respect to any
payment of principal of (or premium, if any, on) or interest on such Security to
any Holder who is a fiduciary or partnership or any person other than the sole
beneficial
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owner of such payment, to the extent that a beneficiary or settlor with respect
to such fiduciary, a member of such a partnership or the beneficial owner of
such payment would not have been entitled to the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the actual Holder of such
Security, (c) if the Securities are presented for payment in The Netherlands;
provided, however, that at such time the Issuer has at least one paying agent in
the European Union (other than in The Netherlands), or (d) if the Securities are
presented for payment by, on behalf of, a Holder who would be able to avoid
withholding or deduction by presenting any form or certificate and/or making a
declaration of non-residence or similar claim for exemption but fails to do so.
Upon request, the Issuer shall provide the Trustee with
official receipts or other documentation satisfactory to the Trustee evidencing
the payment of the Taxes with respect to which Additional Amounts are paid.
Whenever in this Indenture there is mentioned, in any context:
(1) the payment of principal; (2) purchase prices in connection with a purchase
of Securities; (3) interest; or (4) any other amount payable on or with respect
to any of the Securities, such reference shall be deemed to include payment of
Additional Amounts provided for in this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
The Issuer shall pay any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise in any jurisdiction from the execution, delivery, enforcement
or registration of the Securities, this Indenture or any other document or
instrument in relation thereof, or the receipt of any payments with respect to
the Securities, excluding such taxes, charges or similar levies imposed by any
jurisdiction outside of The Netherlands, the jurisdiction of incorporation of
any successor of the Issuer or any jurisdiction in which a paying agent is
located, and the Issuer will indemnify the Holders for any such taxes paid by
such Holders.
The obligations described under this Section shall survive any
termination, defeasance or discharge of this Indenture and shall apply mutatis
mutandis to any jurisdiction in which any successor Person to the Issuer is
organized or any political subdivision or taxing authority or agency thereof or
therein.
SECTION 4.13. Compliance Certificate. The Company or the
Issuer shall deliver to the Trustee within
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120 days after the end of each fiscal year of the Company an Officers'
Certificate stating that in the course of the performance by the signers of
their duties as Officers of the Company or the Issuer they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company or the Issuer is taking or
proposes to take with respect thereto. The Issuer also shall comply with TIA
Section 314(a)(4).
SECTION 4.14. Further Instruments and Acts. The Company and
the Subsidiary Guarantors will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper or as the Trustee
may request to carry out more effectively the purpose of this Indenture.
SECTION 4.15. Ownership of the Issuer. The Issuer shall at all
times be a Wholly Owned Subsidiary of the Company.
SECTION 4.16. Limitation on Business Activities of the Issuer.
The Issuer will not, and the Company will not permit the Issuer to (a) incur any
Indebtedness other than (1) the Securities, (2) the Issuer's Guaranty of the
Dollar Notes, (3) the Issuer's guaranty of obligations in respect of the Credit
Agreement and, (4) Indebtedness incurred in compliance with Section 4.03(b)(4)
of this Indenture and, in the case of (1) and (2), any refinancings or
replacements thereof permitted by the Section 4.03 or (b) engage in any business
activities other than (1) the issuance of the Securities and the guaranties
described in the preceding clause (a), (2) the making of Intercompany Loans and
(3) activities incidental to the activities described in clauses (1) or (2) of
this clause (b).
SECTION 4.17. Limitation on Use of Proceeds. The Issuer will
use all the net proceeds of the issuance of the Securities to make Intercompany
Loans and pay fees and expenses of the offering of the Securities, including
customary organizational expenses of the Issuer.
ARTICLE 5
Successor Company
SECTION 5.01. When the Company or Issuer May Merge or Transfer
Assets. Neither the Company nor the Issuer shall consolidate with or merge with
or into, or convey, transfer or lease, in one transaction or a series of
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transactions, directly or indirectly, all or substantially
all its assets to, any Person, unless, in the case of the
Company:
(1) the resulting, surviving or transferee Person (the
"Successor Company") shall be a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia or under the laws of Bermuda, the British Virgin Islands,
the Bahamas or Canada and the Successor Company (if not the Company)
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Company's Guaranty of the
Securities and this Indenture;
(2) immediately after giving pro forma effect to such
transaction (and treating any Indebtedness which becomes an obligation
of the Successor Company or any Subsidiary as a result of such
transaction as having been Incurred by such Successor Company or such
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(3) immediately after giving pro forma effect to such
transaction, the Successor Company would be able to Incur an additional
$1.00 of Indebtedness pursuant to Section 4.03(a);
(4) immediately after giving pro forma effect to such
transaction, the Successor Company shall have Consolidated Net Worth in
an amount that is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction;
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture;
(6) in the event that the Successor Company in any merger is
organized and existing under the laws of Bermuda, the British Virgin
Islands, the Bahamas or Canada (any such merger, a "Foreign
Jurisdiction Merger"), the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders will not recognize
income, gain or loss for Netherlands tax purposes as a result of such
transaction and will be subject to Netherlands tax on the same amounts
and at the same times as would have been the case if such transaction
had not occurred; and
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(7) in the event of a Foreign Jurisdiction Merger, the Company
shall have delivered to the Trustee an Opinion of Counsel in the
jurisdiction of the Successor Company to the effect that (A) any
payment of interest or principal under or with respect to the
Securities or the Guaranties will, after giving effect to such
transaction, be exempt from any withholding or deduction for or on
account of any present or future tax, duty, levy, impost, assessment or
other governmental charge of whatever nature imposed or levied by or on
behalf of any jurisdiction from or through which payment is made or in
which the payor is organized, resident or engaged in business for tax
purposes and (B) no other taxes or income (including capital gains)
will be payable by a Holder of Securities under the laws of any
jurisdiction where the Successor Company is or becomes organized,
resident or engaged in business for tax purposes in respect of the
acquisition, ownership or disposition of the Securities, including the
receipt of interest or principal thereon, provided that such Holder
does not use or hold, and is not deemed to use or hold the Securities
in carrying on a business in the jurisdiction where the Successor
Company is or becomes organized, resident or engaged in business for
tax purposes;
provided, however, that clause (3) and (4) will not be applicable to (A) a
Restricted Subsidiary consolidating with, merging into or transferring all or
part of its properties and assets to the Company or (B) the Company merging with
an Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction.
The Successor Company shall be the successor to the Company
and shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture, and the predecessor Company, except
in the case of a lease, shall be released from the obligation to pay the
principal of and interest on the Securities.
The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person unless: (1) except in the case of a Subsidiary Guarantor that has
been disposed of in its entirety to another Person (other than to the Company or
an Affiliate of the Company), whether through a merger, consolidation or sale of
Capital Stock or assets, the resulting, surviving or transferee Person (if not
such Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction
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under which such Subsidiary was organized or under the laws of the United States
of America, or any State thereof or the District of Columbia, and such Person
shall expressly assume, by a Guaranty Agreement, in a form satisfactory to the
Trustee, all the obligations of such Subsidiary, if any, under its Subsidiary
Guaranty of the Securities and Dollar Notes; (2) immediately after giving effect
to such transaction or transactions on a pro forma basis (and treating any
Indebtedness which becomes an obligation of the resulting, surviving or
transferee Person as a result of such transaction as having been issued by such
Person at the time of such transaction), no Default shall have occurred and be
continuing; and (3) the Issuer delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such Guaranty Agreement, if any, complies with this Indenture.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(1) the Issuer defaults in any payment of interest or any
Additional Amounts on any Security when the same becomes due and
payable, whether or not such payment shall be prohibited by Article 10,
and such default continues for a period of 30 days;
(2) the Company or the Issuer (i) defaults in the payment of
the principal of any Security when the same becomes due and payable at
its Stated Maturity, upon optional redemption, upon declaration or
otherwise, whether or not such payment shall be prohibited by Article
10, or (ii) fails to redeem or purchase Securities when required
pursuant to this Indenture or the Securities, whether or not such
redemption or purchase shall be prohibited by Article 10;
(3) the Company or the Issuer fails to comply with
Section 5.01;
(4) the Company or the Issuer, as applicable, fails to comply
with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.11,
4.15, 4.16 or 4.17 (other than a failure to purchase Securities when
required under Section 4.06 or 4.09) and such failure continues for 30
days after the notice specified below;
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(5) the Company, the Issuer or any Subsidiary Guarantor fails
to comply with any of its agreements in the Securities or this
Indenture (other than those referred to in clause (1), (2), (3) or (4)
above) and such failure continues for 60 days after the notice
specified below;
(6) Indebtedness of any Subsidiary Guarantor, the Company, the
Issuer or any Significant Subsidiary is not paid within any applicable
grace period after final maturity or is accelerated by the holders
thereof because of a default and the total amount of such Indebtedness
unpaid or accelerated exceeds $10.0 million, or its foreign currency
equivalent at the time;
(7) any Subsidiary Guarantor, the Company, the Issuer or any
Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against any Subsidiary Guarantor,
the Company, the Issuer or any Significant Subsidiary in an
involuntary case;
(B) appoints a Custodian of any Subsidiary Guarantor,
the Company, the Issuer or any Significant Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of any
Subsidiary Guarantor, the Company, the Issuer or any
Significant Subsidiary;
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or any similar relief is granted under any foreign laws
and the order or decree remains unstayed and in effect
for 60 days;
(9) any judgment or decree for the payment of money in excess
of $10.0 million or its foreign currency equivalent at the time is
entered against any Subsidiary Guarantor, the Company, the Issuer or
any Significant Subsidiary, remains outstanding for a period of 60 days
following the entry of such judgment or decree and is not discharged,
waived or the execution thereof stayed within 10 days after the notice
specified below; or
(10) the Company's Guaranty of the Securities or a Subsidiary
Guaranty ceases to be in full force and effect (other than in
accordance with the terms of this Indenture) or the Company or a
Subsidiary Guarantor denies or disaffirms its obligations under its
Guaranty.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors and (in the case
of the Issuer) means Netherlands bankruptcy law, including without limitation
the provisions thereof relating to surseance van betaling and faillissement. The
term "Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clauses (4), (5) or (9) is not an Event of
Default until the Trustee or the holders of at least 25% in principal amount of
the outstanding Securities notify the Issuer of the Default and the Issuer or
the Company does not cure such Default within the time specified after receipt
of such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default".
The Issuer shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Issuer is taking or
proposes to take with respect thereto.
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SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company or the Issuer) occurs and is continuing, the Trustee by notice to the
Issuer, or the Holders of at least 25% in principal amount of the Securities by
notice to the Issuer and the Trustee, may declare the principal of and accrued
but unpaid interest on all the Securities to be due and payable. Upon such a
declaration, such principal and interest shall be due and payable immediately.
If an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company or the Issuer, occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security, (ii) a Default arising
from the failure to redeem or purchase any Security when required pursuant to
this Indenture or (iii) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected. When
a Default is waived, it is deemed cured, but no such
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waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification or
security satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. Except to enforce the right
to receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal
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of and interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Issuer, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Issuer and,
if such money or property has been collected from the Company or a
Subsidiary Guarantor, to holders of Senior Indebtedness of the Company
or of such Subsidiary Guarantor, in each case to the extent required by
Article 10, 12 and 14;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
FOURTH: to the Issuer.
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The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Issuer shall mail to each Securityholder and the
Trustee a notice that states the record date, the payment date and amount to be
paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuer (to
the extent it may lawfully do so) shall not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Issuer
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
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(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
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(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may
conclusively rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document;
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel;
(c) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care;
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct or negligence;
(e) The Trustee may consult with counsel of its choice, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel;
(f) Any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer request or Issuer order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
resolution;
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer has actual knowledge thereof
or unless written
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notice of any event which is in fact such a default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(j) The Trustee may request that the Issuer deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign on Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Issuer's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Issuer in the Indenture or in any document issued in connection
with the sale of the Securities or in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with
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the May 15 following the date of this Indenture, and in any event prior to July
15 in each year, the Trustee shall mail to each Securityholder a brief report
dated as of May 15 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Issuer agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay
to the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Issuer shall indemnify the Trustee and any predecessor Trustee and their agents
against any and all loss, liability or expense (including attorneys' fees and
taxes (other than taxes based upon, measured by or determined by the income of
the Trustee)) incurred by it in connection with the administration of this trust
and the performance of its duties hereunder, including the costs and expenses of
defending itself against any claim (whether asserted by the Issuer or any Holder
or any other Person). The Trustee shall notify the Issuer promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Issuer
shall not relieve the Issuer of its obligations hereunder. The Issuer shall
defend the claim and the Trustee may have separate counsel and the Issuer shall
pay the fees and expenses of such counsel. The Issuer need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Issuer's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular Securities.
The Issuer's payment obligations pursuant to this Section 7.07
shall survive the discharge of this Indenture and the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a Default
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specified in Section 6.01(7) or (8) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Issuer. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Issuer shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuer or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction at the expense of the Issuer for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
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Notwithstanding the replacement of the Trustee pursuant to
this Section 7.08, the Issuer's obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Issuer. The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (1) the Issuer delivers to the
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Trustee all outstanding Securities (other than Securities replaced pursuant to
Section 2.07) for cancellation or (2) all outstanding Securities have become due
and payable, whether at maturity or on a redemption date as a result of the
mailing of a notice of redemption pursuant to Article 3 hereof and the Issuer
irrevocably deposits with the Trustee funds sufficient to pay at maturity or
upon redemption all outstanding Securities, including interest thereon to
maturity or such redemption date (other than Securities replaced pursuant to
Section 2.07), and if in either case the Issuer pays all other sums payable
hereunder by the Issuer, then this Indenture shall, subject to Section 8.01(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the Issuer.
(b) Subject to Sections 8.01(c) and 8.02, the Issuer at any
time may terminate (1) all its and the Company's obligations under the
Securities and this Indenture ("legal defeasance option") or (2) the Company's
and the Issuer's obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10, 4.11, 4.15, 4.16 and 4.17 and the operation of Sections
6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections
6.01(7) and (8), with respect only to Significant Subsidiaries) and the
limitations contained in Sections 5.01(3) and 5.01(4) ("covenant defeasance
option"). The Issuer may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default with
respect thereto. If the Issuer exercises its covenant defeasance option, payment
of the Securities may not be accelerated because of an Event of Default
specified in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in
the case of Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries) or because of the failure of the Company to comply with Sections
5.01(3) and 5.01(4). If the Issuer exercises its legal defeasance option or its
covenant defeasance option, each Subsidiary Guarantor, if any, shall be released
from all its obligations with respect to its Subsidiary Guaranty and the Company
shall be released from all its obligations with respect to its Guaranty.
Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuer terminates.
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(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Issuer's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. Conditions to Defeasance. The Issuer may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Issuer irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations or European Government Obligations
for the payment of principal of and interest on the Securities to
maturity or redemption, as the case may be;
(2) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations or
European Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will
be sufficient to pay principal and interest when due on all the
Securities to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Sections 6.01(7) or (8) with
respect to the Issuer occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the Issuer and is not prohibited by Article 10;
(5) the Issuer delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income
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tax purposes as a result of such 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 defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders 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;
(8) the Issuer delivers to the Trustee an Opinion of Counsel
in The Netherlands to the effect that (A) Holders will not recognize
income, gain or loss for Dutch federal or provincial income tax
purposes as a result of such deposit and defeasance, and will be
subject to income tax of such jurisdiction on the same amounts, and in
the same manner and at the same times as would have been the case if
such deposit and defeasance, had not occurred, and (B) payments from
the defeasance trust will be free and exempt from any and all
withholding and other income taxes of whatever nature of The
Netherlands or any province thereof or any political subdivision
thereof or therein having the power to tax; and
(9) the Issuer delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
For purposes of this Section, money denominated in currency
other than Euro and U.S. Government Obligations deposited pursuant to this
section shall be subject in their entirety (including principal, interest and
premium, if any) to a customary Currency Agreement that is of a duration not
less than the defeasance period that fixes the exchange rate of such money or
U.S. Government Obligations into Euro for the benefit of the Trustee. The amount
of such money and U.S. Government Obligations expressed in Euro will be as
provided in such Currency Agreement. The counterparty to such Currency Agreement
shall be a commercial bank organized in the United States having capital and
surplus in excess of $500.0 million or a commercial bank organized under the
laws
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of any country that is a member of the OECD having total assets in excess of
$500.0 million (or its foreign currency equivalent at the time). Such
counterparty may obtain from the Issuer an Opinion of Counsel to the effect that
such currency agreement has been duly authorized and entered into by the Issuer.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money, European Government Obligations or U.S. Government
Obligations deposited with it pursuant to this Article 8. It shall apply the
deposited money and the money from European Government Obligations or U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities. Money
and securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Issuer. The Trustee and the Paying
Agent shall promptly turn over to the Issuer upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Issuer upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years,
and, thereafter, Securityholders entitled to the money must look to the Issuer
for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Issuer
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited European Government Obligations or U.S.
Government Obligations or the principal and interest received on such European
Government or U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money, European Government Obligations or U.S. Government
Obligations in accordance with this Article 8 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
and the Issuer's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article 8 until such time as the Trustee or Paying Agent is permitted to apply
all such money, European Government Obligations or U.S. Government Obligations
in accordance with this Article 8; provided, however, that, if the Issuer has
made any payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Issuer shall be
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subrogated to the rights of the Holders of such Securities to receive such
payment from the money, European Government Obligations or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Issuer, the
Company, the Subsidiary Guarantors and the Trustee may amend this Indenture or
the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 that would limit or
terminate the benefits available to any holder of Senior Indebtedness
of the Company or the Issuer or of a Subsidiary Guarantor (or
Representatives therefor) under Article 10, 12 or 14;
(5) to add guarantees with respect to the Securities,
including any Subsidiary Guaranties, or to secure the Securities;
(6) to add to the covenants of the Issuer, the Company or a
Subsidiary Guarantor for the benefit of the Holders or to surrender any
right or power herein conferred upon the Issuer, the Company or a
Subsidiary Guarantor;
(7) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA; or
(8) to make any change that does not adversely
affect the rights of any Securityholder.
An amendment under this Section 9.01 may not make any change
that adversely affects the rights under
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Article 10, 12 or 14 of any holder of Senior Indebtedness of the Issuer, the
Company or of a Subsidiary Guarantor then outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.01 becomes effective,
the Issuer shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.01.
SECTION 9.02. With Consent of Holders. The Issuer, the Company
the Subsidiary Guarantors and the Trustee may amend this Indenture or the
Securities without notice to any Securityholder but with the written consent of
the Holders of at least a majority in principal amount of the Securities then
outstanding (including consents obtained in connection with a tender offer or
exchange for the Securities). However, without the consent of each
Securityholder affected thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal amount of or extend the Stated
Maturity of any Security;
(4) reduce the amount payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any changes in the ranking or priority of any
Security that would adversely affect the Securityholders;
(7) make any change in Section 6.04 or 6.07 or the
second sentence of this Section 9.02;
(8) make any change in the Company Guaranty or any Subsidiary
Guaranty that would adversely affect the Securityholders; or
(9) make any change in Section 4.12 that adversely affects the
rights of any Securityholder or amend terms of the Securities or this
Indenture in a way that would
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result in the loss of an exemption from any of the Taxes described
thereunder.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 may not make any change
that adversely affects the rights under Article 10, 12 or 14 of any holder of
Senior Indebtedness of the Issuer, the Company or of a Subsidiary Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective,
the Issuer shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders
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after such record date. No such consent shall be valid or effective for more
than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer in
exchange for the Security shall issue and the Trustee shall authenticate a new
Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Issuer nor any
Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate. The Issuer agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article 10, to the prior payment of all
Senior Indebtedness of the Issuer and that the subordination is for the benefit
of and enforceable by the holders of such Senior Indebtedness. The Securities
shall in all respects rank pari passu with all other Senior Subordinated
Indebtedness of the Issuer and only
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Indebtedness of the Issuer which is Senior Indebtedness of the Issuer shall rank
senior to the Securities in accordance with the provisions set forth herein. All
provisions of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Issuer to creditors upon a total or
partial liquidation or a total or partial dissolution of the Issuer or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Issuer or its property:
(1) holders of Senior Indebtedness of the Issuer shall be
entitled to receive payment in full in cash of such Senior Indebtedness
before Securityholders shall be entitled to receive any payment of
principal of or interest on the Securities; and
(2) until such Senior Indebtedness is paid in full in cash,
any payment or distribution to which Securityholders would be entitled
but for this Article 10 shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Securityholders
may receive shares of Capital Stock and any debt securities that are
subordinated to such Senior Indebtedness to at least the same extent as
the Securities.
SECTION 10.03. Default on Senior Indebtedness of the Issuer.
The Issuer shall not pay the principal of or interest on the Securities or make
any deposit pursuant to Section 8.01 and may not purchase, redeem or otherwise
retire any Securities (collectively, "pay the Securities") if either of the
following (a "Payment Default") occurs (1) any Designated Senior Indebtedness of
the Issuer is not paid in cash when due; or (2) any other default on Designated
Senior Indebtedness of the Issuer occurs and the maturity of such Designated
Senior Indebtedness is accelerated in accordance with its terms unless, in
either case, the Payment Default has been cured or waived and any such
acceleration has been rescinded or such Designated Senior Indebtedness has been
paid in full in cash; provided, however, that the Issuer shall be entitled to
pay the Securities without regard to the foregoing if the Issuer and the Trustee
receive written notice approving such payment from the Representative of all
Designated Senior Indebtedness with respect to which a Payment Default has
occurred and is continuing. During the continuance of any default (other than a
Payment Default) with respect to any Designated Senior Indebtedness of the
Issuer pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of
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any applicable grace periods, the Issuer shall not pay the Securities for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
of (with a copy to the Issuer) written notice (a "Blockage Notice") of such
default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter. The Payment Blockage Period shall end earlier if such Payment
Blockage Period is terminated (1) by written notice to the Trustee and the
Issuer from the Person or Persons who gave such Blockage Notice; (2) because the
default giving rise to such Blockage Notice is cured, waived or otherwise no
longer continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash. Notwithstanding the provisions described
in the immediately preceding two sentences (but subject to the provisions
contained in the first sentence of this Section 10.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such Designated
Senior Indebtedness shall have accelerated the maturity of such Designated
Senior Indebtedness, the Issuer shall be entitled to resume payments on the
Securities after termination of such Payment Blockage Period. The Securities
shall not be subject to more than one Payment Blockage Period in any consecutive
360-day period, irrespective of the number of defaults with respect to
Designated Senior Indebtedness of the Issuer during such period; provided,
however, that if any Blockage Notice within such 360-day period is given by or
on behalf of any holders of Designated Senior Indebtedness of the Issuer (other
than the Bank Indebtedness), the Representative of the Bank Indebtedness shall
be entitled to give another Blockage Notice within such period; provided
further, however, that in no event shall the total number of days during which
any Payment Blockage Period or Periods is in effect exceed 179 days in the
aggregate during any 360-consecutive-day period, and there must be 181 days
during any 360-consecutive day period during which no Payment Blockage Period is
in effect. For purposes of this Section 10.03, no default or event of default
which existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Designated Senior Indebtedness of the Issuer
initiating such Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Payment Blockage Period by the Representative of
such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Issuer or the Trustee
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shall promptly notify the holders of the Designated Senior Indebtedness of the
Issuer (or their Representatives) of the acceleration. If any Designated Senior
Indebtedness of the Issuer is outstanding, the Issuer shall not pay the
Securities until five Business Days after the Representatives of all the issues
of Designated Senior Indebtedness of the Issuer receive notice of such
acceleration and, thereafter, shall be entitled to pay the Securities only if
this Article 10 otherwise permits payment at that time.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article 10 should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the Issuer and pay
it over to them as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness of
the Issuer is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness. A
distribution made under this Article 10 to holders of such Senior Indebtedness
which otherwise would have been made to Securityholders is not, as between the
Issuer and Securityholders, a payment by the Issuer on such Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Issuer. Nothing in this Indenture shall:
(1) impair, as between the Issuer and Securityholders, the
obligation of the Issuer, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a Default, subject to the rights of holders
of Senior Indebtedness of the Issuer to receive distributions otherwise
payable to Securityholders.
SECTION 10.08. Subordination May Not Be Impaired by Issuer. No
right of any holder of Senior Indebtedness of the Issuer to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Issuer or by its failure to comply with this
Indenture.
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SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent shall continue to
make payments on the Securities and shall not be charged with knowledge of the
existence of facts that under this Article 10 would prohibit the making of any
such payments unless, not less than two Business Days prior to the date of such
payment, a Trust Officer of the Trustee receives notice satisfactory to it that
such payments are prohibited by this Article 10. The Issuer, the Registrar or
co-registrar, the Paying Agent, a Representative or a holder of Senior
Indebtedness of the Issuer shall be entitled to give the notice; provided,
however, that, if an issue of Senior Indebtedness of the Issuer has a
Representative, only the Representative shall be entitled to give the notice.
The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of the Issuer with the same rights it would
have if it were not Trustee. The Registrar and co-registrar and the Paying Agent
shall be entitled to do the same with like rights. The Trustee shall be entitled
to all the rights set forth in this Article 10 with respect to any Senior
Indebtedness of the Issuer which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness; and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article 10 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to holders of
Senior Indebtedness of the Issuer, such Person shall be entitled to make such
distribution or give such notice to their Representative (if any).
SECTION 10.11. Article 10 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Securityholders or the Trustee to accelerate the
maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations or European Government Obligations held in trust
under Article 8 by the Trustee for the payment of principal of and interest on
the Securities shall not be subordinated to the prior payment of any Senior
Indebtedness of the
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Issuer or subject to the restrictions set forth in this Article 10, and none of
the Securityholders shall be obligated to pay over any such amount to the Issuer
or any holder of Senior Indebtedness of the Issuer or any other creditor of the
Issuer.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the
Securityholders or (3) upon the Representatives of Senior Indebtedness of the
Issuer for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Indebtedness and other
Indebtedness of the Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 10. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness of the Issuer to participate in any payment or distribution
pursuant to this Article 10, the Trustee shall be entitled to request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 10, and, if such
evidence is not furnished, the Trustee shall be entitled to defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Issuer as provided in this Article 10 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Issuer. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness of the Issuer and shall not be liable
to any such holders if it shall mistakenly pay over or distribute
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to Securityholders or the Issuer or any other Person, money or assets to which
any holders of Senior Indebtedness of the Issuer shall be entitled by virtue of
this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness of
the Issuer on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of the Issuer, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of such Senior Indebtedness shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 11
The Company Guaranty
SECTION 11.01. The Company Guaranty. The Company hereby
unconditionally and irrevocably guarantees to each Holder and to the Trustee and
its successors and assigns (a) the full and punctual payment of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Issuer under
this Indenture and the Securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Issuer under
this Indenture and the Securities (all the foregoing being for purposes of this
Article 11 collectively called the "Obligations"). The Company further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice or further assent from the Company and that the Company will remain bound
under this Article 11 notwithstanding any extension or renewal of any
Obligation.
The Company waives presentation to, demand of, payment from
and protest to the Issuer of any of the Obligations and also waives notice of
protest for nonpayment. The Company waives notice of any default under the
Securities or the Obligations. The obligations of the Company hereunder shall
not be affected by (a) the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any right or remedy against the Issuer or any
other Person under this Indenture, the Securities or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
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Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
or (e) the failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Obligations.
The Company further agrees that its Guaranty herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Obligations.
The Company Guaranty is, to the extent and in the manner set
forth in Article 12, subordinated and subject in right of payment to the prior
payment in full of the principal of and premium, if any, and interest on all
Senior Indebtedness of the Company and such Guaranty is made subject to such
provisions of this Indenture.
Except as expressly set forth in Sections 8.01(a) and (b) and
8.02, the obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of the Company herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
the Company or would otherwise operate as a discharge of the Company as a matter
of law or equity.
The Company further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against the
Company by
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virtue hereof, upon the failure of the Issuer to pay the principal of or
interest on any Obligation when and as the same shall become due, whether at
maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Obligation, the Company hereby promises to and shall, upon
receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in
cash, to the Holders or the Trustee an amount equal to the sum of (1) the unpaid
amount of such Obligations, (2) accrued and unpaid interest on such Obligations
(but only to the extent not prohibited by law) and (3) all other monetary
Obligations of the Issuer to the Holders and the Trustee.
The Company agrees that it shall not be entitled to any right
of subrogation in respect of any Obligations guaranteed hereby until payment in
full of all Obligations and all obligations to which the Obligations are
subordinated as provided in Article 12. The Company further agrees that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the Obligations Guaranteed hereby may be accelerated as
provided in Article 6 for the purposes of the Company's Guaranty herein,
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, such Obligations (whether or not due and payable) shall forthwith
become due and payable by the Company for the purposes of this Section.
The Company also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section.
SECTION 11.02. Successors and Assigns. This Article 11 shall
be binding upon the Company and its successors and assigns and shall enure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.03. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders
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herein expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 11 at law, in
equity, by statute or otherwise.
SECTION 11.04. Modification. No modification, amendment or
waiver of any provision of this Article 11, nor the consent to any departure by
the Company therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in the same, similar or other circumstances.
ARTICLE 12
Subordination of the Company Guaranty
SECTION 12.01. Agreement To Subordinate. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Company's Guaranty is subordinated in right of payment, to the
extent and in the manner provided in this Article 12, to the prior payment of
all Senior Indebtedness of the Company and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. The
Obligations of the Company shall in all respects rank pari passu with all other
Senior Subordinated Indebtedness of the Company and only Senior Indebtedness of
the Company (including the Company's Guaranty of Senior Indebtedness of the
Issuer) shall rank senior to the Obligations of the Company in accordance with
the provisions set forth herein.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full of such Senior Indebtedness before
Securityholders shall be entitled to receive any payment pursuant to
the Guaranty of the Company; and
(2) until the Senior Indebtedness of the Company is paid in
full in cash, any payment or distribution to which Securityholders
would be entitled but for this Article 12 shall be made to holders of
such Senior
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Indebtedness as their interests may appear, except that Securityholders
may receive shares of Capital Stock and any debt securities of the
Company that are subordinated to such Senior Indebtedness to at least
the same extent as Guaranty.
SECTION 12.03. Default on Senior Indebtedness of the Company.
The Company shall make its Guaranty or purchase, redeem or otherwise retire or
defease any Securities or other Obligations (collectively, "pay its Guaranty")
if either of the following (a "Payment Default") occurs (1) any Designated
Senior Indebtedness of the Company is not paid when due; or (2) any other
default on Designated Senior Indebtedness of the Company occurs and the maturity
of such Designated Senior Indebtedness is accelerated in accordance with its
terms; unless, in either case, the Payment Default has been cured or waived and
any such acceleration has been rescinded or such Designated Senior Indebtedness
has been paid in full; provided, however, that the Company shall be entitled to
pay its Guaranty without regard to the foregoing if the Company and the Trustee
receive written notice approving such payment from the Representative of any
Designated Senior Indebtedness with respect to which the Payment Default has
occurred and is continuing. During the continuance of any default (other than a
Payment Default) with respect to any Designated Senior Indebtedness of the
Company pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company
shall not pay its Guaranty for a period (a "Payment Blockage Period") commencing
upon the receipt by the Trustee of (with a copy to the Company) written notice
(a "Blockage Notice") of such default from the Representative of such Designated
Senior Indebtedness specifying an election to effect a Payment Blockage Period
and ending 179 days thereafter. The Payment Blockage Period shall end earlier if
such Payment Blockage Period is terminated (1) by written notice to the Trustee
and the Company from the Person or Persons who gave such Blockage Notice; (2)
because the default giving rise to such Blockage Notice is cured, waived or
otherwise no longer continuing; or (3) because such Designated Senior
Indebtedness has been discharged or repaid in full. Notwithstanding the
provisions described in the immediately preceding two sentences (but subject to
the provisions contained in the first sentence of this Section), unless the
holders of such Designated Senior Indebtedness giving such Payment Notice or the
Representative of such Designated Senior Indebtedness shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company shall be entitled
to resume payments pursuant to its Guaranty after termination of such Payment
Blockage Period. The Company shall not be subject
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to more than one Blockage Period in any consecutive 360-day period, irrespective
of the number of defaults with respect to Designated Senior Indebtedness of the
Company during such period; provided, however, that if any Blockage Notice
within such 360-day period is given by or on behalf of any holders of Designated
Senior Indebtedness of the Issuer (other than the Bank Indebtedness), the
Representative of the Bank Indebtedness shall be entitled to give another
Blockage Notice within such period; provided further, however, that in no event
shall the total number of days during which any Payment Blockage Period or
Periods is in effect exceed 179 days in the aggregate during any
360-consecutive-day period, and there must be 181 days during any
360-consecutive day period during which no Payment Blockage Period is in effect.
For purposes of this Section, no default or event of default which existed or
was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Indebtedness of the Company initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such default or event of default shall have been cured or waived for a
period of not less than 90 consecutive days.
SECTION 12.04. Demand for Payment. If a demand for payment is
made on the Company pursuant to Article 11, the Trustee shall promptly notify
the holders of the Designated Senior Indebtedness of the Company (or their
Representatives) of such demand.
SECTION 12.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article 12 should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the Company and pay
it over to it or its Representatives as their interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness of
the Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness of the
Company. A distribution made under this Article 12 to holders of such Senior
Indebtedness which otherwise would have been made to Securityholders is not, as
between the Company and Securityholders, a payment by the Company on such Senior
Indebtedness.
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SECTION 12.07. Relative Rights. This Article 12 defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
its Guaranty to the extent set forth in Article 11; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by the Company under its
Guaranty, subject to the rights of holders of Senior Indebtedness of
the Company to receive distributions otherwise payable to
Securityholders.
SECTION 12.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Guaranty of the Company shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 12.03, the Trustee or Paying Agent shall continue to
make payments on any Guaranty and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that such
payments are prohibited by this Article 12. The Issuer, the Company, the
Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Senior Indebtedness of the Company shall be entitled to give the notice;
provided, however, that, if an issue of Senior Indebtedness of the Company has a
Representative, only the Representative shall be entitled to give the notice.
The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of the Company with the same rights it
would have if it were not the Trustee. The Registrar and co-registrar and the
Paying Agent may do the same with like rights. The Trustee shall be entitled to
all the rights set forth in this Article 12 with respect to any Senior
Indebtedness of the Company which may at any time be held by it, to the same
extent as any other holder of such Senior Indebtedness; and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article 12 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.07.
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SECTION 12.10. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to holders of
Senior Indebtedness of the Company, such Person shall be entitled to make such
distribution or give such notice to their Representative (if any).
SECTION 12.11. Article 12 Not To Prevent Events of Default or
Limit Right To Demand Payment. The failure to make a payment pursuant to a
Guaranty by reason of any provision in this Article 12 shall not be construed as
preventing the occurrence of a Default. Nothing in this Article 12 shall have
any effect on the right of the Securityholders or the Trustee to make a demand
for payment on the Company pursuant to its Guaranty.
SECTION 12.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the
Securityholders or (3) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such Senior
Indebtedness and other indebtedness of the Company or the Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 12. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article 12, the
Trustee shall be entitled to request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of the Company held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 12, and, if such evidence is not
furnished, the Trustee shall be entitled to defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take
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such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of Senior Indebtedness
of the Company as provided in this Article 12 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Company. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Company and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Securityholders or the Issuer or any other Person, money or assets to which
any holders of such Senior Indebtedness shall be entitled by virtue of this
Article 12 or otherwise.
SECTION 12.15. Reliance by Holders of Senior Indebtedness of
the Company on Subordination Provisions. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder of
any Senior Indebtedness of the Company, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 13
Subsidiary Guaranties
SECTION 13.01. Guaranties. Each Subsidiary Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Securities when due,
whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Issuer under this Indenture and the Securities and
(b) the full and punctual performance within applicable grace periods of all
other obligations of the Issuer under this Indenture and the Securities (all the
foregoing being for the purposes of this Article 13 collectively called the
"Obligations"). Each Subsidiary Guarantor further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice or further
assent from such Subsidiary Guarantor and that such Subsidiary Guarantor will
remain bound under this Article 13 notwithstanding any extension or renewal of
any Obligation.
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Each Subsidiary Guarantor waives presentation to, demand of,
payment from and protest to the Issuer of any of the Obligations and also waives
notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any
default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Issuer or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities or any other agreement;
(d) the release of any security held by any Holder or the Trustee for the
Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Obligations; or
(f) except as set forth in Section 13.06, any change in the ownership of such
Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guaranty herein constitutes a guarantee of payment, performance and compliance
when due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security held for
payment of the Obligations.
Each Subsidiary Guaranty is, to the extent and in the manner
set forth in Article 14, subordinated and subject in right of payment to the
prior payment in full of the principal of and premium, if any, and interest on
all Senior Indebtedness of the Subsidiary Guarantor giving such Subsidiary
Guaranty and each Subsidiary Guaranty is made subject to such provisions of this
Indenture.
Except as expressly set forth in Sections 8.01(b), 13.02 and
13.06, the obligations of each Subsidiary Guarantor hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Subsidiary Guarantor herein
shall not be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the obligations, or by any other act or thing
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or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
Each Subsidiary Guarantor further agrees that its Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or interest on any
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Issuer to pay the
principal of or interest on any Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Obligation, each Subsidiary Guarantor hereby
promises to and shall, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (1) the unpaid amount of such Obligations, (2) accrued and unpaid
interest on such Obligations (but only to the extent not prohibited by law) and
(3) all other monetary Obligations of the Issuer to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in respect of any Obligations guaranteed hereby
until payment in full of all Obligations and all obligations to which the
Obligations are subordinated as provided in Article 14. Each Subsidiary
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Obligations
Guaranteed hereby may be accelerated as provided in Article 6 for the purposes
of such Subsidiary Guarantor's Subsidiary Guaranty herein, 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, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 13.01.
Each Subsidiary Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
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SECTION 13.02. Limitation on Liability. Any term or provision
of this Indenture to the contrary notwithstanding, the maximum aggregate amount
of the Obligations guaranteed hereunder by any Subsidiary Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Each Subsidiary Guarantor that makes a payment under its
Guaranty will be entitled to a contribution from each other Subsidiary Guarantor
in an amount equal to such other Subsidiary Guarantor's pro rata portion of such
payment based on the respective net assets of all the Subsidiary Guarantors at
the time of such payment determined in accordance with GAAP.
SECTION 13.03. Successors and Assigns. This Article 13 shall
be binding upon each Subsidiary Guarantor and its successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 13.04. No Waiver. Neither a failure nor a delay on the
part of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 13 shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article 13
at law, in equity, by statute or otherwise.
SECTION 13.05. Modification. No modification, amendment or
waiver of any provision of this Article 13, nor the consent to any departure by
any Subsidiary Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Trustee, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case
shall entitle such Subsidiary Guarantor to any other or further notice or demand
in the same, similar or other circumstances.
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SECTION 13.06. Release of Subsidiary Guarantor. Upon the sale
(including any sale pursuant to any exercise of remedies by a holder of Senior
Indebtedness of the Issuer or of such Subsidiary Guarantor) or other disposition
(including by way of consolidation or merger) of a Subsidiary Guarantor or the
sale or disposition of all or substantially all the assets of such Subsidiary
Guarantor (in each case other than a sale or disposition to the Issuer or an
Affiliate of the Issuer) or at such time as such Subsidiary Guarantor no longer
Guarantees any other Indebtedness of the Company or the Issuer, such Subsidiary
Guarantor shall be deemed released from all obligations under this Article 13
without any further action required on the part of the Trustee or any Holder. At
the request of the Issuer, the Trustee shall execute and deliver an appropriate
instrument evidencing such release.
ARTICLE 14
Subordination of Subsidiary Guaranties
SECTION 14.01. Agreement To Subordinate. Each Subsidiary
Guarantor agrees, and each Securityholder by accepting a Security agrees, that
the Indebtedness evidenced by such Subsidiary Guarantor's Subsidiary Guaranty is
subordinated in right of payment, to the extent and in the manner provided in
this Article 14, to the prior payment of all Senior Indebtedness of such
Subsidiary Guarantor and that the subordination is for the benefit of and
enforceable by the holders of such Senior Indebtedness. The Obligations of a
Subsidiary Guarantor shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of such Subsidiary Guarantor and only Senior
Indebtedness of such Subsidiary Guarantor (including such Subsidiary)
Guarantor's Guaranty of Senior Indebtedness of the Issuer) shall rank senior to
the Obligations of such Subsidiary Guarantor in accordance with the provisions
set forth herein.
SECTION 14.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of any Subsidiary Guarantor to creditors
upon a total or partial liquidation or a total or partial dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor or its
property:
(1) holders of Senior Indebtedness of such Subsidiary
Guarantor shall be entitled to receive payment in full in cash of such
Senior Indebtedness before Securityholders shall be entitled to receive
any
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payment pursuant to the Subsidiary Guaranty of such Subsidiary
Guarantor; and
(2) until the Senior Indebtedness of any Subsidiary Guarantor
is paid in full in cash, any payment or distribution to which
Securityholders would be entitled but for this Article 14 shall be made
to holders of such Senior Indebtedness as their interests may appear,
except that Securityholders may receive shares of Capital Stock and any
debt securities of such Subsidiary Guarantor that are subordinated to
such Senior Indebtedness to at least the same extent as Subsidiary
Guaranty.
SECTION 14.03. Default on Senior Indebtedness of Subsidiary
Guarantor. No Subsidiary Guarantor shall make its Subsidiary Guaranty or
purchase, redeem or otherwise retire or defease any Securities or other
Obligations (collectively, "pay its Subsidiary Guaranty") if either of the
following (a "Payment Default") occurs (1) any Designated Senior Indebtedness of
such Subsidiary Guarantor is not paid in cash when due; or (2) any other default
on Designated Senior Indebtedness of such Subsidiary Guarantor occurs and the
maturity of such Designated Senior Indebtedness is accelerated in accordance
with its terms; unless, in either case, the Payment Default has been cured or
waived and any such acceleration has been rescinded or such Designated Senior
Indebtedness has been paid in full in cash; provided, however, that any
Subsidiary Guarantor shall be entitled to pay its Subsidiary Guaranty without
regard to the foregoing if such Subsidiary Guarantor and the Trustee receive
written notice approving such payment from the Representative of all Designated
Senior Indebtedness with respect to which a Payment Default has occurred and is
continuing. During the continuance of any default (other than a Payment Default)
with respect to any Designated Senior Indebtedness of such Subsidiary Guarantor
pursuant to which the maturity thereof may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, such Subsidiary
Guarantor shall not pay its Subsidiary Guaranty for a period (a "Payment
Blockage Period") commencing upon the receipt by the Trustee of (with a copy to
such Subsidiary Guarantor) written notice (a "Blockage Notice") of such default
from the Representative of such Designated Senior Indebtedness specifying an
election to effect a Payment Blockage Period and ending 179 days thereafter. The
Payment Blockage Period shall end earlier if such Payment Blockage Period is
terminated (1) by written notice to the Trustee and such Subsidiary Guarantor
from the Person or Persons who gave such Blockage Notice; (2) because the
default giving rise to such Blockage Notice is cured, waived or otherwise no
longer
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continuing; or (3) because such Designated Senior Indebtedness has been
discharged or repaid in full in cash. Notwithstanding the provisions described
in the immediately preceding two sentences (but subject to the provisions
contained in the first sentence of this Section 14.03), unless the holders of
such Designated Senior Indebtedness giving such Payment Notice or the
Representative of such Designated Senior Indebtedness shall have accelerated the
maturity of such Designated Senior Indebtedness, any Subsidiary Guarantor shall
be entitled to resume payments pursuant to its Subsidiary Guaranty after
termination of such Payment Blockage Period. No Subsidiary Guarantor shall be
subject to more than one Blockage Period in any 360-consecutive day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of such Subsidiary Guarantor during such period; provided, however,
that if any Blockage Notice within such 360-day period is given by or on behalf
of any holders of Designated Senior Indebtedness of the Issuer (other than the
Bank Indebtedness), the Representative of the Bank Indebtedness shall be
entitled to give another Blockage Notice within such period; provided further,
however, that in no event shall the total number of days during which any
Payment Blockage Period or Periods is in effect exceed 179 days in the aggregate
during any 360-consecutive day period, and there must be 181 days during any
360-consecutive day period during which no Payment Blockage Period is in effect.
For purposes of this Section 14.03, no default or event of default which existed
or was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Indebtedness of such Subsidiary Guarantor
initiating such Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Payment Blockage Period by the Representative of
such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
SECTION 14.04. Demand for Payment. If a demand for payment is
made on a Subsidiary Guarantor pursuant to Article 13, the Trustee shall
promptly notify the holders of the Designated Senior Indebtedness of such
Subsidiary Guarantor (or their Representatives) of such demand.
SECTION 14.05. When Distribution Must Be Paid Over. If a
distribution is made to Securityholders that because of this Article 14 should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness of the applicable
Subsidiary Guarantor and pay it over to them or their Representatives as their
interests may appear.
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SECTION 14.06. Subrogation. After all Senior Indebtedness of a
Subsidiary Guarantor is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness of such
Subsidiary Guarantor. A distribution made under this Article 14 to holders of
such Senior Indebtedness which otherwise would have been made to Securityholders
is not, as between the relevant Subsidiary Guarantor and Securityholders, a
payment by such Subsidiary Guarantor on such Senior Indebtedness.
SECTION 14.07. Relative Rights. This Article 14 defines the
relative rights of Securityholders and holders of Senior Indebtedness of a
Subsidiary Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Subsidiary Guarantor and
Securityholders, the obligation of such Subsidiary Guarantor, which is
absolute and unconditional, to pay its Subsidiary Guaranty to the
extent set forth in Article 13; or
(2) prevent the Trustee or any Securityholder from exercising
its available remedies upon a default by such Subsidiary Guarantor
under its Subsidiary Guaranty, subject to the rights of holders of
Senior Indebtedness of such Subsidiary Guarantor to receive
distributions otherwise payable to Securityholders.
SECTION 14.08. Subordination May Not Be Impaired by Issuer or
any Subsidiary Guarantor. No right of any holder of Senior Indebtedness of any
Subsidiary Guarantor to enforce the subordination of the Subsidiary Guaranty of
such Subsidiary Guarantor shall be impaired by any act or failure to act by the
Issuer or such Subsidiary Guarantor or by their failure to comply with this
Indenture.
SECTION 14.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 14.03, the Trustee or Paying Agent shall continue to
make payments on any Subsidiary Guaranty and shall not be charged with knowledge
of the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
Trust Officer of the Trustee receives written notice satisfactory to it that
such payments are prohibited by this Article 14. The Issuer, the relevant
Subsidiary Guarantor, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness of such Subsidiary Guarantor
shall be entitled to give the notice; provided, however, that, if an issue of
Senior Indebtedness of any Subsidiary Guarantor has a Representative, only the
Representative shall be entitled to give the notice.
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The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of any Subsidiary Guarantor with the same
rights it would have if it were not the Trustee. The Registrar and co-registrar
and the Paying Agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article 14 with respect to any
Senior Indebtedness of any Subsidiary Guarantor which may at any time be held by
it, to the same extent as any other holder of such Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 14 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 14.10. Distribution or Notice to Representative.
Whenever any Person is to make a distribution or give a notice to holders of
Senior Indebtedness of any Subsidiary Guarantor, such Person shall be entitled
to make such distribution or give such notice to their Representative (if any).
SECTION 14.11. Article 14 Not To Prevent Events of Default or
Limit Right To Demand Payment. The failure to make a payment pursuant to a
Subsidiary Guaranty by reason of any provision in this Article 14 shall not be
construed as preventing the occurrence of a Default. Nothing in this Article 14
shall have any effect on the right of the Securityholders or the Trustee to make
a demand for payment on any Subsidiary Guarantor pursuant to its Subsidiary
Guaranty.
SECTION 14.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 14, the Trustee and the Securityholders
shall be entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 14.02
are pending, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the
Securityholders or (3) upon the Representatives for the holders of Senior
Indebtedness of any Subsidiary Guarantor for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
such Senior Indebtedness and other indebtedness of such Subsidiary Guarantor,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 14. In the
event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of any
Subsidiary Guarantor to
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participate in any payment or distribution pursuant to this Article 14, the
Trustee shall be entitled to request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of such Subsidiary Guarantor held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 14, and, if such
evidence is not furnished, the Trustee shall be entitled to defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment. The provisions of Sections 7.01 and 7.02 shall be
applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 14.
SECTION 14.13. Trustee To Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of any Subsidiary Guarantor as provided in this Article 14
and appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 14.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of Subsidiary Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of any Subsidiary Guarantor
and shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Securityholders or the Issuer or any other Person, money or assets
to which any holders of such Senior Indebtedness shall be entitled by virtue of
this Article 14 or otherwise.
SECTION 14.15. Reliance by Holders of Senior Indebtedness of
Subsidiary Guarantors on Subordination Provisions. Each Securityholder by
accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to
each holder of any Senior Indebtedness of any Subsidiary Guarantor, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
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ARTICLE 15
Miscellaneous
SECTION 15.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 15.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Issuer or any Subsidiary Guarantor:
Parallelweg 6,
Etten-Leur 4870AA
The Netherlands
Attention: Managing Director
With a copy to:
Flowserve Corporation
222 West Las Colinas Blvd.
Suite 1500
Irving, TX 75039
Attention of Renee Hornbaker
if to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, NY 10286
Attention of Corporate Trust
Administration - Global Finance Unit
All notices shall be deemed to have been given upon (i) the
mailing by first class mail, postage prepaid, of such notices to Holders at
their registered addresses as recorded in the register, and (ii) so long as the
Securities are listed on the Luxembourg Stock Exchange and it is required by the
rules of the Luxembourg Stock Exchange, publication of such notice to the
Holders of the Securities in English in a leading newspaper having general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) or, if
such publication is not practicable, in one other leading English language daily
newspaper with general circulation in Europe, such newspaper being published on
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each business day in morning editions, whether or not it shall be published in
Saturday, Sunday or holiday editions.
The Issuer, the Company, any Subsidiary Guarantor or the
Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 15.03. Consent to Jurisdiction and Service. The Issuer
will appoint CT Corporation system, 111 8th Avenue, 13th floor, New York, New
York 10011 as its agent for actions brought under Federal or state securities
laws brought in any Federal or state court located in the Borough of Manhattan
in The City of New York and will submit to such jurisdiction.
SECTION 15.04. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuer, the Company, any Subsidiary Guarantor the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
SECTION 15.05. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuer to the Trustee to take
or refrain from taking any action under this Indenture, the Issuer shall furnish
to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 15.06. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 15.07. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuer or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 15.08. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 15.09. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York, a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) system is not open or, so
long as the Securities are listed on the Luxembourg Stock Exchange, the City of
Luxembourg. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period. If a regular record date is a Legal Holiday, the
record date shall not be affected.
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SECTION 15.10. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York 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.
SECTION 15.11. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Issuer, the Company or any
Subsidiary Guarantor shall not have any liability for any obligations of the
Issuer under the Securities or this Indenture, of the Company under its Guaranty
or this Indenture or of such Subsidiary Guarantor under its Subsidiary Guaranty
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 15.12. Successors. All agreements of the Issuer in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 15.13. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 15.14. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
FLOWSERVE FINANCE B.V.,
by /s/ JOHN M. NANOS
-------------------------------
Name: John M. Nanos
Title: Managing Director
by /s/ M. KATHLEEN MCVAY
-------------------------------
Name: M. Kathleen McVay
Title: Managing Director
FLOWSERVE CORPORATION,
by /s/ RENEE J. HORNBAKER
-------------------------------
Name: Renee J. Hornbaker
Title: Vice President and
Chief Financial
Officer
FLOWSERVE RED CORPORATION,
FLOWSERVE FSD CORPORATION,
FLOWSERVE FCD CORPORATION,
FLOWSERVE INTERNATIONAL, INC.,
FLOWSERVE MANAGEMENT COMPANY (DE
BUSINESS TRUST),
BW/IP-NEW MEXICO, INC.,
FLOWSERVE INTERNATIONAL, LLC,
DURAMETALLIC AUSTRALIA HOLDING COMPANY,
FLOWSERVE INTERNATIONAL LIMITED,
INNOVATIVE VALVE TECHNOLOGIES, INC.,
PLANT MAINTENANCE, INC.,
VARCO VALVE, INC.,
COLONIAL EQUIPMENT & SERVICE CO., INC.,
CECORP, INC.,
DIVT ACQUISITION-DELAWARE, LLC,
DIVT SUBSIDIARY, LLC,
SOUTHERN VALVE SERVICE, INC.,
L.T. KOPPL INDUSTRIES, INC.,
KOPPL COMPANY,
KOPPL INDUSTRIAL SYSTEMS, INC.,
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HARLEY INDUSTRIES, INC.,
KOPPL COMPANY OF ARIZONA,
SEELEY & JONES, INCORPORATED,
GSV, INC.,
IPSCO-FLORIDA, INC.,
INTERNATIONAL PIPING SERVICES COMPANY,
CYPRESS INDUSTRIES, INC.,
DALCO, LLC,
PLANT SPECIALTIES, INC.,
ENERGY MAINTENANCE, INC.,
PREVENTIVE MAINTENANCE, INC.,
PRODUCTION MACHINE INCORPORATED,
ICE LIQUIDATING, INC.,
VALVE REPAIR OF SOUTH CAROLINA, INC.,
THE SAFE SEAL COMPANY, INC.,
FLICKINGER-BENICIA INC.,
PUGET INVESTMENTS, INC.,
STEAM SUPPLY & RUBBER CO., INC.,
FLICKINGER COMPANY,
BOYDEN, INC.,
VALVE ACTUATION & REPAIR CO.,
INGERSOLL-DRESSER PUMP COMPANY,
IDP ALTERNATE ENERGY COMPANY,
ENERGY HYDRO, INC.
PUMP INVESTMENTS, INC.
FLOWSERVE HOLDINGS, INC.
IPSCO HOLDING, INC.
by /s/ JOHN M. NANOS
-------------------------------
Name: John M. Nanos
Title:
THE BANK OF NEW YORK,
by /s/ LUIS PEREZ
-------------------------------
Name: Luis Perez
Title: Assistant V.P.
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RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix the following terms shall
have the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary or Permanent Regulation S Global Security, a
Rule 144A Global Security or beneficial interest therein, the rules and
procedures of the Depository for such Global Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme.
"Depository" means Clearstream, Euroclear, their respective
nominees and their respective successors.
"Euroclear" means Morgan Guaranty Trust Company of New York
(Brussels office) as operator of the Euroclear Clearance System or any successor
securities clearing agency.
"Exchange Securities" means (1) the 12-1/4% Senior
Subordinated Notes Due 2010 issued pursuant to the Indenture in connection with
a Registered Exchange Offer pursuant to a Registration Rights Agreement and (2)
Additional Securities, if any, issued pursuant to a registration statement filed
with the SEC under the Securities Act.
"Global Securities Legend" means the legend set forth under
that caption in Exhibit 1 to this Indenture.
"Initial Purchasers" means (1) with respect to the Initial
Securities issued on the Issue Date, the entities identified as Purchasers in
the Purchase Agreement, and (2) with respect to each issuance of Additional
Securities, the Persons purchasing such Additional Securities under the related
Purchase Agreement.
"Initial Securities" means (1) E.100,00,000 aggregate
principal amount of 12-1/4% Senior Subordinated Notes Due 2010 issued on the
Issue Date and (2) Additional Securities, if any, issued in a transaction exempt
from the registration requirements of the Securities Act.
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"Private Exchange" means the offer by the Issuer, pursuant to
a Registration Rights Agreement, to the Initial Purchasers to issue and deliver
to each Initial Purchaser, in exchange for the Initial Securities held by the
Initial Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
"Private Exchange Securities" means any 12-1/4% Senior
Subordinated Notes Due 2010 issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Purchase Agreement dated August 3, 2000
among the Issuer and the Initial Purchasers, and (2) with respect to each
issuance of Additional Securities, the purchase agreement or underwriting
agreement among the Issuer and the Persons purchasing such Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Issuer,
pursuant to a Registration Rights Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means (1) with respect to the
Initial Securities issued on the Issue Date, the Registration Rights Agreement
dated August 3, 2000, among the Issuer, the Company and the Initial Purchasers,
and (2) with respect to each issuance of Additional Securities issued in a
transaction exempt from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Issuer and the Persons
purchasing such Additional Securities under the related Purchase Agreement.
"Regulation S" means Regulation S under the Securities Act, as
amended.
"Regulation S Securities" means all Initial Securities offered
and sold outside the United States in reliance on Regulation S.
"Restricted Period", with respect to any Securities, means the
period of 40 consecutive days beginning on and including the later of (i) the
day on which such Securities are first offered to persons other than
distributors (as defined in Regulation S under the
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Securities Act) in reliance on Regulation S and (ii) the Issue Date with respect
to such Securities.
"Restricted Securities Legend" means the legend set forth in
Section 2.3(c) herein.
"Rule 144A" means Rule 144A under the Securities Act, as
amended.
"Rule 144A Securities" means all Initial Securities offered
and sold to QIBs in reliance on Rule 144A.
"Securities" means the Initial Securities, the Exchange
Securities and the Private Exchange Securities, treated as a single class.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means, with respect to the Securities
issued as Global Securities, the person designated as the common depositary by
Euroclear or Clearstream or their respective successors, which shall initially
be The Bank of New York Depositary (Nominees) Limited.
"Shelf Registration Statement" means the registration
statement issued by the Issuer in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to a Registration Rights
Agreement.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.3(c) hereto.
1.2 Other Definitions
<TABLE>
<CAPTION>
Defined in
Term Section:
---- ----------
<S> <C>
"Agent Members"......................................................... 2.1(b)
"Global Security"....................................................... 2.1(a)
"Permanent Regulation S Global Security"................................ 2.3(b)
"Regulation S Global Securities"........................................ 2.1(a)
"Rule 144A Global Security"............................................. 2.1(a)
"Temporary Regulation S Global Security"................................ 2.1(a)
</TABLE>
2. The Securities.
2.1 Form and Dating. The Initial Securities issued on the date hereof
shall be (i) offered and sold by the Issuer pursuant to the Purchase Agreement
and (ii) resold, initially only to (A) QIBs in reliance on Rule 144A and (B)
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Persons other than U.S. Persons (as defined in Regulation S) in reliance on
Regulation S. Such Initial Securities may thereafter be transferred to, among
others, QIBs and purchasers in reliance on Regulation S.
(a) Global Securities. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
temporary global Securities (collectively, the "Temporary Regulation S Global
Security"), in each case without interest coupons and bearing the Global
Securities Legend and Restricted Securities Legend, which shall be deposited on
behalf of the purchasers of the Securities represented thereby with the
Securities Custodian, and registered in the name of the Depository or a nominee
of the Depository, duly executed by the Issuer and authenticated by the Trustee
as provided in the Indenture. Except as set forth in Section 2.3, beneficial
ownership interests in the Temporary Regulation S Global Security shall not be
exchangeable for interests in the Rule 144A Global Security or a Permanent
Regulation S Global Security (as defined below) or any other Security without a
Restricted Securities Legend until the expiration of the Restricted Period. Upon
the expiration of the Restricted Period, beneficial interests in the Securities
represented by the Temporary Regulation S Global Security may be exchanged for
interests in the Permanent Regulation S Global Security as described below in
Section 2.3(b). The Rule 144A Global Security, the Temporary Regulation S Global
Security and the Permanent Regulation S Global Security are each referred to
herein as a "Global Security" and are collectively referred to herein as "Global
Securities." The Temporary Regulation S Global Security and the Permanent
Regulation S Global Security are referred to herein as "Regulation S Global
Securities." The aggregate principal amount of the Global Securities may from
time to time be increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to a Global Security deposited with or on behalf of the Depository.
The Issuer shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depository for such
Global Security or Global Securities or the nominee of such Depository and (b)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for the
Depository.
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Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, the Securities Custodian or by
the Trustee as the custodian of the Depository or under such Global Security,
and the Issuer, the Trustee and any agent of the Issuer or the Trustee shall be
entitled to treat the Depository as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository governing the
exercise of the rights of a holder of a beneficial interest in any Global
Security.
(c) Certificated Securities. Except as provided in this
Section 2.1 or Section 2.3 or 2.4, owners of beneficial interests in Global
Securities shall not be entitled to receive physical delivery of certificated
Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) on
the Issue Date, an aggregate principal amount of E.100,000,000 12-1/4% Senior
Subordinated Notes Due 2010, (2) any Additional Securities for an original issue
in an aggregate principal amount specified in the written order of the Issuer
pursuant to Section 2.02 of the Indenture and (3) Exchange Securities or Private
Exchange Securities for issue only in a Registered Exchange Offer or a Private
Exchange, respectively, pursuant to a Registration Rights Agreement, for a like
principal amount of Initial Securities, in each case upon a written order of the
Issuer signed by two Officers of the Issuer. Such order shall specify the amount
of the Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated and, in the case of any issuance of
Additional Securities pursuant to Section 2.13 of the Indenture, shall certify
that such issuance is in compliance with Sections 2.13 and 4.03 of the
Indenture.
2.3 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if
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any) and the procedures of the Depository therefor. A transferor of a beneficial
interest in a Global Security shall deliver to the Registrar a written order
given in accordance with the Depository's procedures containing information
regarding the participant account of the Depository to be credited with a
beneficial interest in the Global Security. The Registrar shall, in accordance
with such instructions instruct the Depository to credit to the account of the
Person specified in such instructions a beneficial interest in the Global
Security and to debit the account of the Person making the transfer the
beneficial interest in the Global Security being transferred. Transfers by an
owner of a beneficial interest in the Rule 144A Global Security to a transferee
who takes delivery of such interest through the Regulation S Global Security,
whether before or after the expiration of the Restricted Period, will be made
only upon receipt by the Trustee of a certification from the transferor to the
effect that such transfer is being made in accordance with Regulation S or (if
available) Rule 144 under the Securities Act and that, if such transfer is being
made prior to the expiration of the Restricted Period, the interest transferred
will be held immediately thereafter through Euroclear or Clearstream.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such interest
is being transferred in an amount equal to the principal amount of the interest
to be so transferred, and the Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of the Global
Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Security may not
be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Restricted Global Security is
exchanged for Securities in certificated registered form pursuant to Section 2.4
of this Appendix, prior to the consummation of a Registered Exchange Offer or
the effectiveness of a Shelf Registration Statement with respect to such
Securities, such Securities may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this Section
2.3
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(including the certification requirements set forth on the reverse of the
Initial Securities intended to ensure that such transfers comply with Rule 144A
or Regulation S, as the case may be) and such other procedures as may from time
to time be adopted by the Issuer.
(b) Restrictions on Transfer of Temporary Regulation S Global
Security. (i) Prior to the expiration of the Restricted Period, interests in the
Temporary Regulation S Global Security may only be held through Euroclear or
Clearstream. During the Restricted Period, beneficial ownership interests in the
Temporary Regulation S Global Security may only be sold, pledged or transferred
through Euroclear or Clearstream in accordance with the Applicable Procedures
and only (A) to the Issuer, (B) inside the United States to a person whom 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, (C) outside the United States in an offshore transaction in
accordance with Rule 904 under the Securities Act, (D) pursuant to an exemption
from registration under the Securities Act provided by Rule 144 (if available),
or (E) pursuant to an effective registration statement under the Securities Act,
in each of cases (A) through (E) in accordance with any applicable securities
laws of any state of the United States.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Temporary Regulation S Global Security may be
exchanged for interests in a permanent global security in definitive, fully
registered form without the Restricted Security Legend (the "Permanent
Regulation S Global Security") upon certification to the Trustee that such
interests are owned either by non-U.S. persons or U.S. persons who purchased
such interests pursuant to an exemption from, or transfer not subject to, the
registration requirements of the Securities Act. On or prior to the expiration
of the Restricted Period, each Holder of a Temporary Regulation S Global
Security shall deliver to Euroclear or Clearstream (as applicable) a Regulation
S Certificate in the form of Exhibit B-1 attached hereto; provided, however,
that any Holder of a Temporary Regulation S Global Security upon expiration of
the Restricted Period or on any payment date that has previously delivered a
Regulation S Certificate hereunder shall not be required to deliver any
subsequent Regulation S Certificate (unless the certificate previously delivered
is no longer true as of such subsequent date, in which case such beneficial
owner shall promptly notify Euroclear and Clearstream, as applicable, thereof
and shall deliver to the Paying Agent or the Trustee an updated Regulation S
Certificate). Euroclear or Clearstream, as applicable, shall deliver to the
Paying Agent or the Trustee
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a certificate (a "Non-U.S. Certificate") substantially in the form of Exhibit
B-2 attached hereto promptly upon the receipt of each such Regulation S
Certificate, and no such Holder (or transferee from such Holder) shall be
entitled to receive an interest in a Permanent Regulation S Global Security or
any payment of distributions or a redemption payment, if applicable, or any
other payment with respect to its beneficial interest in a Temporary Regulation
S Global Security prior to the Paying Agent or the Trustee receiving such
Non-U.S. Certificate from Euroclear or Clearstream with respect to the portion
of the Temporary Regulation S Global Security owned by such Holder (and, with
respect to an interest in the Permanent Regulation S Global Security, prior to
the expiration of the Restricted Period).
The Permanent Regulation S Global Security shall bear a legend
in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS.
TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
(iii) Any payments of distributions or a redemption price, if
applicable, or any other payment on a Temporary Regulation S Global Security
received by Euroclear or Clearstream with respect to any portion of such
Regulation S Global Security owned by a Holder that has not delivered the
Regulation S Certificate required by Section 2.3(b) shall be held by Euroclear
and Clearstream solely as agents for the Paying Agent and the Trustee. Euroclear
and Clearstream shall remit such payments to the applicable Holder (or to a
Euroclear or Clearstream member on behalf of such Holder) only after Euroclear
or Clearstream has received the requisite Regulation S Certificate. Until the
Paying Agent or the Trustee has received a Non-U.S. Certificate from Euroclear
or Clearstream, as applicable, that it has received the requisite Regulation S
Certificate with respect to the beneficial ownership of any portion of a
Temporary Regulation S Global Security, the Paying Agent or the Trustee may
revoke the right of Euroclear or Clearstream, as applicable, to hold any
payments made with respect to such portion of such Regulation S Global Security.
If the Paying Agent or the Trustee exercises its right of revocation pursuant to
the immediately preceding sentence, Euroclear or Clearstream, as applicable,
shall return such payments to the Paying Agent or the Trustee and
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the Paying Agent or the Trustee, as applicable, shall hold such payments until
Euroclear or Clearstream, as applicable, has provided the necessary Non-U.S.
Certificates to the Paying Agent or the Trustee (at which time the Paying Agent
shall forward such payments to Euroclear or Clearstream, as applicable, to be
remitted to the beneficial owner that is entitled thereto on the records of
Euroclear or Clearstream (or on the records of their respective members)).
(iv) Upon the expiration of the Restricted Period, the Issuer
shall prepare and execute the Permanent Regulation S Global Security in
accordance with the terms of this Indenture and deliver it to the Trustee for
authentication. The Trustee shall deliver the Permanent Regulation S Global
Security to the Securities Custodian. Any transfers of beneficial ownership
interests in the Temporary Regulation S Global Security made in reliance on
Regulation S shall thenceforth be recorded by the Depository or the Securities
Custodian by making an appropriate increase in the principal amount of the
Permanent Regulation S Global Security and a corresponding decrease in the
principal amount of the Temporary Regulation S Global Security. At such time as
the principal amount of the Temporary Regulation S Global Security has been
reduced to zero, the Depository or the Securities Custodian shall return the
Temporary Regulation S Global Security to the Trustee, who shall cancel the
Temporary Regulation S Global Security and deliver it to the Issuer.
(c) Legend. (i) Except as permitted by the following
paragraphs (ii), (iii) and (iv), and except for the permanent Regulation S
Global Security as provided above, each Security certificate evidencing the
Restricted Global Securities (and all Securities issued in exchange therefor or
in substitution thereof) shall bear a legend in substantially the following
form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE ISSUER, (II) IN THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
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INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Restricted
Global Security) pursuant to Rule 144 under the Securities Act, the Registrar
shall permit the transferee thereof to exchange such Transfer Restricted
Security for a certificated Security that does not bear the legend set forth
above and rescind any restriction on the transfer of such Transfer Restricted
Security, if the transferor thereof certifies in writing to the Registrar that
such sale or transfer was made in reliance on Rule 144 (such certification to be
in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities pursuant to and during the period of the effectiveness of a
Shelf Registration Statement with respect to such Initial Securities or Private
Exchange Securities, as the case may be, all requirements pertaining to legends
on such Initial Security or such Private Exchange Security will cease to apply,
the requirements requiring any such Initial Security or such Private Exchange
Security issued to certain Holders be issued in global form will cease to apply,
and a certificated Initial Security or Private Exchange Security or an Initial
Security or Private Exchange Security in global form, in each case without
restrictive transfer legends, will be available to the transferee of the Holder
of such Initial Securities or Private Exchange Securities upon exchange of such
transferring Holder's certificated Initial Security or Private Exchange Security
or directions to transfer such Holder's interest in the Global Security, as
applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued in global
form will still apply with respect to Holders of such
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Initial Securities that do not exchange their Initial Securities, and Exchange
Securities in certificated or global form will be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect
to the Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued in global
form will still apply with respect to Holders of such Initial Securities that do
not exchange their Initial Securities, and Private Exchange Securities in global
form with the global securities legend and the Restricted Securities Legend set
forth in Exhibit 1 hereto will be available to Holders that exchange such
Initial Securities in such Private Exchange.
(c) Cancellation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for certificated Securities, redeemed, purchased or canceled, such Global
Security shall be returned to the Trustee for cancellation or retained and
canceled by the Depository or the Securities Custodian. At any time prior to
such cancellation, if any beneficial interest in a Global Security is exchanged
for certificated Securities, redeemed, purchased or canceled, the principal
amount of Securities represented by such Global Security shall be reduced and an
adjustment shall be made on the books and records of the Depository with respect
to such Global Security, by the Trustee or the Securities Custodian, to reflect
such reduction.
(d) Obligations with Respect to Transfers and Exchanges of
Securities. (i) To permit registrations of transfers and exchanges, the Issuer
shall execute and the Trustee shall authenticate certificated Securities and
Global Securities at the Registrar's or co-registrar's request.
(ii)No service charge shall be made for any registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.06,
4.06, 4.09 and 9.05 of the Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase or redeem
Securities or 15 Business Days before an interest payment date.
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(iv) Prior to the due presentation for registration of
transfer of any Security, the Issuer, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name a
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none of
the Issuer, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of the Indenture shall evidence the same debt and shall be
entitled to the same benefits under the Indenture as the Securities surrendered
upon such transfer or exchange.
(e) No Obligation of the Trustee. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall be
given or made only to or upon the order of the registered Holders (which shall
be the Depository or its nominee in the case of a Global Security). The rights
of beneficial owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of the Depository. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depository
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of the Indenture, and to examine the
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same to determine substantial compliance as to form with the express
requirements hereof.
2.4 Certificated Securities.
(a) A Restricted Global Security deposited with the
Depository, with the Trustee as custodian for the Depository or with the
Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of certificated Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depository notifies the Issuer that it is unwilling or unable to
continue as Depository for such Restricted Global Security or if at any time
such Depository ceases to be a "clearing agency" registered under the Exchange
Act and a successor depositary is not appointed by the Issuer within 90 days of
such notice, (ii) an Event of Default has occurred and is continuing or (iii)
the Issuer, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Securities under the Indenture.
(b) Any Restricted Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be surrendered by the
Depository to the Trustee located at its principal corporate trust office in the
Borough of Manhattan, The City of New York, to be so transferred, in whole or
from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Restricted Global
Security, an equal aggregate principal amount of certificated Initial Securities
of authorized denominations. Any portion of a Restricted Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of E.1,000 principal amount and any integral
multiple thereof and registered in such names as the Depository shall direct.
Any certificated Initial Security or Private Exchange Security delivered in
exchange for an interest in the Restricted Global Security shall, except as
otherwise provided by Section 2.3(c), bear the restricted securities legend set
forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Security shall be entitled to grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under the Indenture or the Securities.
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(d) In the event of the occurrence of either of the events
specified in Section 2.4(a), the Issuer shall promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
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EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE EUROCLEAR CLEARANCE SYSTEM ("EUROCLEAR") OR CLEARSTREAM
BANKING, SOCIETE ANONYME ("CLEARSTREAM"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS
REGISTERED IN THE NAME OF BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CLEARSTREAM OR
EUROCLEAR, AS THE CASE MAY BE (AND ANY PAYMENT IS MADE TO THE BANK OF NEW YORK
DEPOSITARY (NOMINEES) LIMITED, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF CLEARSTREAM OR EUROCLEAR, AS THE CASE MAY BE), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE BANK OF NEW YORK
DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CLEARSTREAM OR EUROCLEAR, AS
THE CASE MAY BE, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
ISSUER THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO THE ISSUER, (II) IN THE UNITED STATES TO A PERSON WHOM
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, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
<PAGE> 142
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
2
<PAGE> 143
No.: ISIN No.:
Common Code No.:
12-1/4% Senior Subordinated Notes Due 2010
Flowserve Finance B.V., a Netherlands besloten vennootschap
with corporate seat in Amsterdam, promises to pay to The Bank of New York
Depositary (Nominees) Limited, or registered assigns, the principal amount set
forth on Schedule A hereto on August 15, 2010.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: August 8, 2000
<PAGE> 144
FLOWSERVE FINANCE B.V.,
by
-------------------------------
Name: John M. Nanos
Title: Managing Director
by
-------------------------------
Name: M. Kathleen McVay
Title: Managing Director
FLOWSERVE CORPORATION,
by
-------------------------------
Name: Renee J. Hornbaker
Title: Vice President and
Chief Financial
Officer
FLOWSERVE RED CORPORATION,
FLOWSERVE FSD CORPORATION,
FLOWSERVE FCD CORPORATION,
FLOWSERVE INTERNATIONAL, INC.,
FLOWSERVE MANAGEMENT COMPANY (DE
BUSINESS TRUST),
BW/IP-NEW MEXICO, INC.,
FLOWSERVE INTERNATIONAL, LLC,
DURAMETALLIC AUSTRALIA HOLDING COMPANY,
FLOWSERVE INTERNATIONAL LIMITED,
INNOVATIVE VALVE TECHNOLOGIES, INC.,
PLANT MAINTENANCE, INC.,
VARCO VALVE, INC.,
COLONIAL EQUIPMENT & SERVICE CO., INC.,
CECORP, INC.,
DIVT ACQUISITION-DELAWARE, LLC,
DIVT SUBSIDIARY, LLC,
SOUTHERN VALVE SERVICE, INC.,
L.T. KOPPL INDUSTRIES, INC.,
KOPPL COMPANY,
KOPPL INDUSTRIAL SYSTEMS, INC.,
HARLEY INDUSTRIES, INC.,
KOPPL COMPANY OF ARIZONA,
SEELEY & JONES, INCORPORATED,
GSV, INC.,
IPSCO-FLORIDA, INC.,
<PAGE> 145
INTERNATIONAL PIPING SERVICES COMPANY,
CYPRESS INDUSTRIES, INC.,
DALCO, LLC,
PLANT SPECIALTIES, INC.,
ENERGY MAINTENANCE, INC.,
PREVENTIVE MAINTENANCE, INC.,
PRODUCTION MACHINE INCORPORATED,
ICE LIQUIDATING, INC.,
VALVE REPAIR OF SOUTH CAROLINA, INC.,
THE SAFE SEAL COMPANY, INC.,
FLICKINGER-BENICIA INC.,
PUGET INVESTMENTS, INC.,
STEAM SUPPLY & RUBBER CO., INC.,
FLICKINGER COMPANY,
BOYDEN INC.,
VALVE ACTUATION & REPAIR CO.,
INGERSOLL-DRESSER PUMP COMPANY,
IDP ALTERNATE ENERGY COMPANY,
ENERGY HYDRO, INC.,
PUMP INVESTMENTS, INC.,
FLOWSERVE HOLDINGS, INC.,
IPSCO HOLDING, INC.,
by
-------------------------------
Name: John M. Nanos
Title:
<PAGE> 146
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-------------------------------------
Authorized Signatory
<PAGE> 147
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
12-1/4% Senior Subordinated Notes Due 2010
1. Interest
Flowserve Finance B.V., a Netherlands besloten vennootschap
with corporate seat in Amsterdam, (such besloten vennootschap, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuer"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per annum
(increasing by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration Default occurs up
to a maximum additional interest rate of 2.00%) from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. The Issuer will pay interest
semiannually on February 15 and August 15 of each year, commencing February 15,
2001. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 8, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Issuer will pay interest on overdue principal at 1% per annum in
excess of the above rate and will pay interest on overdue installments of
interest at such higher rate to the extent lawful.
2. Method of Payment
The Issuer will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Issuer will pay principal and interest
in Euro or any successor money of the European Union that at the time of payment
is legal tender for payment of public and private debts. Payments in respect of
the Securities represented by a Global Security (including principal, premium
and interest) will be made by wire transfer of immediately available funds to
the accounts specified by the Depository. The Issuer will make all payments in
respect of
<PAGE> 148
a certificated Security (including principal, premium and interest) by mailing a
check to the registered address of each Holder thereof; provided, however, that
payments on a certificated Security will be made by wire transfer to a Euro
account maintained by the payee with a bank in a member state of the European
Union if such Holder elects payment by wire transfer by giving written notice to
the Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, (a) The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Trustee, U.S. Paying Agent and
Registrar, and (b) Banque Internationale a Luxembourg will act as Luxembourg
Paying Agent. The Issuer may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Issuer or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Issuer issued the Securities under an Indenture dated as
of August 8, 2000 (the "Indenture"), among the Company, the Issuer, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Issuer. The Issuer shall be entitled, subject to its compliance with Section
4.03 of the Indenture, to issue Additional Securities pursuant to Section 2.13
of the Indenture. The Initial Securities issued on the Issue Date, any
Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes
under the Indenture. The Indenture contains covenants that limit the ability of
the Company to incur additional indebtedness; pay dividends or distributions on,
or redeem or repurchase capital stock; make investments; issue or sell capital
stock of subsidiaries; engage in transactions with affiliates;
2
<PAGE> 149
transfer or sell assets; guarantee indebtedness; restrict dividends or other
payments of subsidiaries; and consolidate, merge or transfer all or
substantially all of its assets and the assets of its subsidiaries. The
Indenture also contains covenants that limit the Issuer's ability to engage in
business activities and its ability to use the proceeds from the issuance of
Securities. These covenants are subject to important exceptions and
qualifications.
5. Optional Redemption
Except as set forth below, the Issuer shall not be entitled to
redeem the Securities at its option prior to August 15, 2005.
On and after August 15, 2005, the Issuer shall be entitled at
its option to redeem all or a portion of the Securities upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed in
percentages of principal amount on the redemption date), plus accrued interest
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on August 15 of the
years set forth below:
<TABLE>
<CAPTION>
Redemption
Period Price
------ ----------
<S> <C>
2005 106.125%
2006 104.083
2007 102.042
2008 and thereafter 100.000%
</TABLE>
In addition, prior to August 15, 2003, the Issuer shall be
entitled at its option on one or more occasions to redeem Securities (which
includes Additional Securities, if any) in an aggregate principal amount not to
exceed 35% of the aggregate principal amount of the Securities (which includes
Additional Securities, if any) originally issued at a redemption price
(expressed as a percentage of principal amount) of 112.25%, plus accrued and
unpaid interest to the redemption date, with the net cash proceeds contributed
to the Issuer from one or more Public Equity Offerings; provided, however, that
(1) at least 65% of such aggregate principal amount of Securities (which
includes Additional Securities, if any) remains outstanding immediately after
the occurrence of each such redemption (other than Securities held, directly or
indirectly, by the Issuer or its Affiliates); and (2) each such redemption
occurs within 60 days after the closing date of the related Public Equity
Offering.
3
<PAGE> 150
6. 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 of Securities to be
redeemed at his registered address. Securities in denominations larger than
E.1,000 principal amount may be redeemed in part but only in whole multiples of
E.1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right to cause the Issuer to repurchase all or any part of the Securities of
such Holder at a repurchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued interest to the date of repurchase
(subject to the right of holders of record on the relevant record date to
receive interest due on the related interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness of the
Issuer, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Issuer must be paid before the Securities may be
paid. The Issuer agrees, and each Securityholder by accepting a Security agrees,
to the subordination provisions contained in the Indenture and authorizes the
Trustee to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
9. Guaranties
The payment by the Issuer of the principal of, and premium and
interest on, the Securities is fully and unconditionally guaranteed on a joint
and several senior subordinated basis by each of the Company and the Subsidiary
Guarantors.
4
<PAGE> 151
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of E.1,000 principal amount and whole multiples of E.1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Issuer at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuer and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time shall be
entitled to terminate some or all of its obligations under the Securities and
the Indenture if the Issuer deposits with the Trustee money, European Government
Obligations or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a
5
<PAGE> 152
majority in principal amount outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Issuer, the Subsidiary Guarantors and the
Trustee shall be entitled to amend the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities including Subsidiary Guaranties, or to secure the Securities, or to
add additional covenants or surrender rights and powers conferred on the
Company, the Issuer, the Subsidiary Guarantors, or to comply with any request of
the SEC in connection with qualifying the Indenture under the Act, or to make
certain changes in the subordination provisions or to make any change that does
not adversely affect the rights of any Securityholder.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon acceleration or otherwise, or failure by the Issuer to
purchase Securities when required; (iii) failure by the Company or the Issuer,
as applicable, to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company, Significant Subsidiaries,
Subsidiary Guarantors, or the Issuer, as applicable, if the amount accelerated
(or so unpaid) exceeds $10.0 million; (v) certain events of bankruptcy or
insolvency with respect to the Company, the Issuer, the Subsidiary Guarantors or
the Significant Subsidiaries; and (vi) certain judgments or decrees for the
payment of money in excess of $10.0 million and (vii) certain defaults with
respect to the Company Guaranty or Subsidiary Guaranties. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being due and payable immediately
upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives indemnity or security
satisfactory
6
<PAGE> 153
to it. Subject to certain limitations, Holders of a majority in principal amount
of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in the interest of the Holders.
16. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Issuer, the Company, any Subsidiary Guarantor or the Trustee shall not have any
liability for any obligations of the Issuer, the Company or any Subsidiary
Guarantor under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
7
<PAGE> 154
20. CUSIP, ISIN and Common Code Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. To the
extent such numbers have been issued, the Issuer has caused ISIN and Common Code
numbers to be similarly printed on the Securities and has similarly instructed
the Trustee. No representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
21. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Issuer to the extent provided therein.
22. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK 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
<PAGE> 155
THE ISSUER WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
FLOWSERVE FINANCE B.V.
PARALLELWEG 6
ETTEN-LEUR 4870AA
THE NETHERLANDS
ATTENTION: MANAGING DIRECTOR
WITH A COPY TO:
FLOWSERVE CORPORATION
222 WEST LAS COLINAS BLVD.
SUITE 1500
IRVING, TX 75039
ATTENTION: RENEE HORNBAKER
9
<PAGE> 156
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Issuer. The
agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
---------------- -----------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each
<PAGE> 157
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act of 1933
in compliance with Rule 904 under the Securities Act of
1933; or
(5) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however,
that if box (4) or (5) is checked, the Trustee shall be entitled to
require, prior to registering any such transfer of the Securities, such
legal opinions, certifications and other information as the Issuer has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
--------------------------------
Signature
Signature Guarantee:
---------------------------- --------------------------------
Signature must be guaranteed Signature
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.
--------------------------------------------------------------------------------
2
<PAGE> 158
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
---------------- -------------------------------------
NOTICE: To be executed by
an executive officer
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security outside the United States as a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act and is aware that the sale to
it is being made in reliance on Regulation S and acknowledges that a holder of
an interest in a temporary Regulation S global security may not (i) receive the
payment of any distributions, redemption price or any other payments with
respect to the holder's beneficial interest in the temporary global security or
(ii) receive an interest in a permanent Regulation S global security until (A)
expiration of the 40th day after the later of the commencement of the offering
of the Securities and the closing date and (B) certification that the beneficial
owner of the interest in the Security is a non-U.S. person.
Dated:
---------------- -------------------------------------
NOTICE: To be executed by
an executive officer
<PAGE> 159
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The original principal amount of this Global Security is
_____________. The following increases or decreases in this Global Security have
been made:
<TABLE>
<S> <C> <C> <C> <C>
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
amount of this amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase) Custodian
</TABLE>
<PAGE> 160
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Issuer or the Company pursuant to Section 4.06, 4.09 or 4.10 of the Indenture,
check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Issuer or the Company pursuant to Section 4.06,
4.09 or 4.10 of the Indenture, state the amount in principal
amount: Euro __________
Date: Your Signature:
--------------- ----------------------------
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee:
--------------------------------------
(Signature must be guaranteed)
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.
<PAGE> 161
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
*/**/
----------
*/ [If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit 1
captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF INCREASES OR
DECREASES IN GLOBAL SECURITY".]
**/ [If the Security is a Private Exchange Security issued in a Private Exchange
to an Initial Purchaser holding an unsold portion of its initial allotment, add
the Restricted Securities Legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in
such Exhibit 1.]
<PAGE> 162
No.: ISIN No.:
Common Code No.:
12-1/4% Senior Subordinated Notes Due 2010
Flowserve Finance B.V., a Netherlands besloten vennootschap
with corporate seat in Amsterdam, promises to pay to The Bank of New York
Depositary (Nominees) Limited, or registered assigns, the principal amount set
forth on Schedule A hereto on August 15, 2010.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: August 8, 2000
<PAGE> 163
FLOWSERVE FINANCE B.V.,
by
-------------------------------
Name: John M. Nanos
Title: Managing Director
by
-------------------------------
Name: M. Kathleen McVay
Title: Managing Director
FLOWSERVE CORPORATION,
by
-------------------------------
Name: Renee J. Hornbaker
Title: Vice President and
Chief Financial
Officer
FLOWSERVE RED CORPORATION,
FLOWSERVE FSD CORPORATION,
FLOWSERVE FCD CORPORATION,
FLOWSERVE INTERNATIONAL, INC.,
FLOWSERVE MANAGEMENT COMPANY (DE
BUSINESS TRUST),
BW/IP-NEW MEXICO, INC.,
FLOWSERVE INTERNATIONAL, LLC,
DURAMETALLIC AUSTRALIA HOLDING
COMPANY,
FLOWSERVE INTERNATIONAL LIMITED,
INNOVATIVE VALVE TECHNOLOGIES,
INC.,
PLANT MAINTENANCE, INC.,
VARCO VALVE, INC.,
COLONIAL EQUIPMENT & SERVICE CO.,
INC.,
CECORP, INC.,
DIVT ACQUISITION-DELAWARE, LLC,
DIVT SUBSIDIARY, LLC,
SOUTHERN VALVE SERVICE, INC.,
L.T. KOPPL INDUSTRIES, INC.,
KOPPL COMPANY,
KOPPL INDUSTRIAL SYSTEMS, INC.,
HARLEY INDUSTRIES, INC.,
KOPPL COMPANY OF ARIZONA,
SEELEY & JONES, INCORPORATED,
GSV, INC.,
IPSCO-FLORIDA, INC.,
<PAGE> 164
INTERNATIONAL PIPING SERVICES
COMPANY,
CYPRESS INDUSTRIES, INC.,
DALCO, LLC,
PLANT SPECIALTIES, INC.,
ENERGY MAINTENANCE, INC.,
PREVENTIVE MAINTENANCE, INC.,
PRODUCTION MACHINE INCORPORATED,
ICE LIQUIDATING, INC.,
VALVE REPAIR OF SOUTH CAROLINA,
INC.,
THE SAFE SEAL COMPANY, INC.,
FLICKINGER-BENICIA INC.,
PUGET INVESTMENTS, INC.,
STEAM SUPPLY & RUBBER CO., INC.,
FLICKINGER COMPANY,
BOYDEN INC.,
VALVE ACTUATION & REPAIR CO.,
INGERSOLL-DRESSER PUMP COMPANY,
IDP ALTERNATE ENERGY COMPANY,
ENERGY HYDRO, INC.,
PUMP INVESTMENTS, INC.,
FLOWSERVE HOLDINGS, INC.,
IPSCO HOLDING, INC.,
by /s/ JOHN M. NANOS
-------------------------------
Name: John M. Nanos
Title:
<PAGE> 165
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
------------------------------
Authorized Signatory
<PAGE> 166
[FORM OF REVERSE SIDE OF [EXCHANGE SECURITY
OR PRIVATE EXCHANGE] SECURITY]
12-1/4% Senior Subordinated Notes Due 2010
1. Interest
Flowserve Finance B.V., a Netherlands besloten vennootschap
with corporate seat in Amsterdam, (such besloten vennootschap, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Issuer"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per annum
(increasing by an additional 0.50% per annum after each consecutive 90-day
period that occurs after the date on which such Registration Default occurs up
to a maximum additional interest rate of 2.00%) from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. The Issuer will pay interest
semiannually on February 15 and August 15 of each year, commencing February 15,
2001. Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from August 8, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Issuer will pay interest on overdue principal at 1% per annum in
excess of the above rate and will pay interest on overdue installments of
interest at such higher rate to the extent lawful.
2. Method of Payment
The Issuer will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of Securities at
the close of business on the February 1 or August 1 next preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Issuer will pay principal and interest
in Euro or any successor money of the European Union that at the time of payment
is legal tender for payment of public and private debts. Payments in respect of
the Securities represented by a Global Security (including principal, premium
and interest) will be made by wire transfer of immediately available funds to
the accounts specified by the
<PAGE> 167
Depository. The Issuer will make all payments in respect of a certificated
Security (including principal, premium and interest) by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on a
certificated Security will be made by wire transfer to a Euro account maintained
by the payee with a bank in a member state of the European Union if such Holder
elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as
the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, (a) The Bank of New York, a New York banking
corporation (the "Trustee"), will act as Trustee, U.S. Paying Agent and
Registrar, and (b) Banque Internationale a Luxembourg will act as Luxembourg
Paying Agent. The Issuer may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Issuer or any of its domestically incorporated
Wholly Owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Issuer issued the Securities under an Indenture dated as
of August 8, 2000 (the "Indenture"), among the Company, the Issuer, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Section Section 77aaa-77bbbb) as in
effect on the date of the Indenture (the "Act"). Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Issuer. The Issuer shall be entitled, subject to its compliance with Section
4.03 of the Indenture, to issue Additional Securities pursuant to Section 2.13
of the Indenture. The Initial Securities issued on the Issue Date, any
Additional Securities and all Exchange Securities or Private Exchange Securities
issued in exchange therefor will be treated as a single class for all purposes
under the Indenture. The Indenture contains covenants that limit the ability of
the Company to incur additional indebtedness; pay dividends or distributions on,
or redeem or repurchase capital stock; make investments; issue or sell capital
stock
2
<PAGE> 168
of subsidiaries; engage in transactions with affiliates; transfer or sell
assets; guarantee indebtedness; restrict dividends or other payments of
subsidiaries; and consolidate, merge or transfer all or substantially all of its
assets and the assets of its subsidiaries. The Indenture also contains covenants
that limit the Issuer's ability to engage in business activities and its ability
to use the proceeds from the issuance of Securities. These covenants are subject
to important exceptions and qualifications.
5. Optional Redemption
Except as set forth below, the Issuer shall not be entitled to
redeem the Securities at its option prior to August 15, 2005.
On and after August 15, 2005, the Issuer shall be entitled at
its option to redeem all or a portion of the Securities upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed in
percentages of principal amount on the redemption date), plus accrued interest
to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on August 15 of the
years set forth below:
<TABLE>
<CAPTION>
Redemption
Period Price
------ ----------
<S> <C>
2005 106.125%
2006 104.083
2007 102.042
2008 and thereafter 100.000%
</TABLE>
In addition, prior to August 15, 2003, the Issuer shall be
entitled at its option on one or more occasions to redeem Securities (which
includes Additional Securities, if any) in an aggregate principal amount not to
exceed 35% of the aggregate principal amount of the Securities (which includes
Additional Securities, if any) originally issued at a redemption price
(expressed as a percentage of principal amount) of 112.25%, plus accrued and
unpaid interest to the redemption date, with the net cash proceeds contributed
to the Issuer from one or more Public Equity Offerings; provided, however, that
(1) at least 65% of such aggregate principal amount of Securities (which
includes Additional Securities, if any) remains outstanding immediately after
the occurrence of each such redemption (other than Securities held, directly or
indirectly, by the Issuer or its Affiliates); and (2) each such redemption
occurs within 60 days after the closing date of the related Public Equity
Offering.
3
<PAGE> 169
6. 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 of Securities to be
redeemed at his registered address. Securities in denominations larger than
E.1,000 principal amount may be redeemed in part but only in whole multiples of
E.1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right to cause the Issuer to repurchase all or any part of the Securities of
such Holder at a repurchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued interest to the date of repurchase
(subject to the right of holders of record on the relevant record date to
receive interest due on the related interest payment date) as provided in, and
subject to the terms of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness of the
Issuer, as defined in the Indenture. To the extent provided in the Indenture,
Senior Indebtedness of the Issuer must be paid before the Securities may be
paid. The Issuer agrees, and each Securityholder by accepting a Security agrees,
to the subordination provisions contained in the Indenture and authorizes the
Trustee to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
9. Guaranties
The payment by the Issuer of the principal of, and premium and
interest on, the Securities is fully and unconditionally guaranteed on a joint
and several senior subordinated basis by each of the Company and the Subsidiary
Guarantors.
4
<PAGE> 170
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of E.1,000 principal amount and whole multiples of E.1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Issuer at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Issuer and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time shall be
entitled to terminate some or all of its obligations under the Securities and
the Indenture if the Issuer deposits with the Trustee money, European Government
Obligations or U.S. Government Obligations for the payment of principal and
interest on the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture and the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a
5
<PAGE> 171
majority in principal amount outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Issuer, the Subsidiary Guarantors and the
Trustee shall be entitled to amend the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to comply with Article 5 of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities including Subsidiary Guaranties, or to secure the Securities, or to
add additional covenants or surrender rights and powers conferred on the
Company, the Issuer, the Subsidiary Guarantors, or to comply with any request of
the SEC in connection with qualifying the Indenture under the Act, or to make
certain changes in the subordination provisions or to make any change that does
not adversely affect the rights of any Securityholder.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon acceleration or other wise, or failure by the Issuer to
purchase Securities when required; (iii) failure by the Company or the Issuer,
as applicable, to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company, Significant Subsidiaries,
Subsidiary Guarantors, or the Issuer, as applicable, if the amount accelerated
(or so unpaid) exceeds $10.0 million; (v) certain events of bankruptcy or
insolvency with respect to the Company, the Issuer, the Subsidiary Guarantors or
the Significant subsidiaries; and (vi) certain judgments or decrees for the
payment of money in excess of $10.0 million and (vii) certain defaults with
respect to the Company Guaranty or Subsidiary Guaranties. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being due and payable immediately
upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives indemnity or
security satisfactory
6
<PAGE> 172
to it. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines
that withholding notice is in the interest of the Holders.
16. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Issuer, the Company, any Subsidiary Guarantor or the Trustee shall not have any
liability for any obligations of the Issuer, the Company or any Subsidiary
Guarantor under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
7
<PAGE> 173
20. CUSIP, ISIN and Common Code Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. To the
extent such numbers have been issued, the Issuer has caused ISIN and Common Code
numbers to be similarly printed on the Securities and has similarly instructed
the Trustee. No representation is made as to the accuracy of such numbers either
as printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
21. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Issuer to the extent provided therein.
22. Governing Law.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK 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
<PAGE> 174
THE ISSUER WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
FLOWSERVE FINANCE B.V.
PARALLELWEG 6
ETTEN-LEUR 4870AA
THE NETHERLANDS
ATTENTION: MANAGING DIRECTOR
WITH A COPY TO:
FLOWSERVE CORPORATION
222 WEST LAS COLINAS BLVD.
SUITE 1500
IRVING, TX 75039
ATTENTION: RENEE HORNBAKER
9
<PAGE> 175
--------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Issuer. The
agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
---------------- ----------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms
that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account
of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A,
in each
<PAGE> 176
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act of 1933
in compliance with Rule 904 under the Securities Act of
1933; or
(5) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however,
that if box (4) or (5) is checked, the Trustee shall be entitled to
require, prior to registering any such transfer of the Securities, such
legal opinions, certifications and other information as the Issuer has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
--------------------------------
Signature
Signature Guarantee:
---------------------------- --------------------------------
Signature must be guaranteed Signature
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.
--------------------------------------------------------------------------------
2
<PAGE> 177
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Issuer as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
---------------- ------------------------------------
NOTICE: To be executed by
an executive officer
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security outside the United States as a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act and is aware that the sale to
it is being made in reliance on Regulation S and acknowledges that a holder of
an interest in a temporary Regulation S global security may not (i) receive the
payment of any distributions, redemption price or any other payments with
respect to the holder's beneficial interest in the temporary global security or
(ii) receive an interest in a permanent Regulation S global security until (A)
expiration of the 40th day after the later of the commencement of the offering
of the Securities and the closing date and (B) certification that the beneficial
owner of the interest in the Security is a non-U.S. person.
Dated:
---------------- ------------------------------------
NOTICE: To be executed by
an executive officer
<PAGE> 178
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The original principal amount of this Global Security
is . The following increases or decreases in this Global Security
have been made:
<TABLE>
<S> <C> <C> <C> <C>
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
amount of this amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
</TABLE>
4
<PAGE> 179
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Issuer or the Company pursuant to Section 4.06, 4.09 or 4.10 of the Indenture,
check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Issuer or the Company pursuant to Section 4.06,
4.09 or 4.10 of the Indenture, state the amount in principal
amount: Euro __________
Date: Your Signature:
--------------- ----------------------------
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee: --------------------------------------------
(Signature must be guaranteed)
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.
5
<PAGE> 180
EXHIBIT B-1
Form of Certification to be Given by Holder of Beneficial
Interest in a Temporary Regulation S Global Security
Re: FLOWSERVE FINANCE B.V.
(the "Issuer") o% Senior Subordinated
Notes due 2010 (the "Notes")
[Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear
System][Clearstream Banking, Societe anonyme]
Securities, [CUSIP No. ][ISIN No. ]
Reference if hereby made to the Indenture dated as of o, 2000
(the "Indenture") between the Issuer and The Bank of New York, as Trustee.
Capitalized terms used herein and not otherwise defined have the meanings set
forth in the Indenture.
[For purposes of acquiring a beneficial interest in the
Permanent Regulation S Global Security upon the expiration of the Restricted
period,] [For purposes of receiving payments under the Temporary Regulation S
Global Security,] the undersigned Holder of a beneficial interest in the
Temporary Regulation S Global Security issued under the Indenture certifies that
it is [not a U.S. Person as defined by Regulation S under][a U.S. Person who
purchased the beneficial interest in the Security pursuant to an exemption from,
or transfer not subject to,] the Securities Act of 1933, as amended.
We undertake to advise you promptly by telex on or prior to
the date on which you intend to submit your corresponding certification relating
to the Securities held by you if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed that
this certificate applies as of such date.
We understand that this certificate is required in connection
with certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocable authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
for the benefit of the Initial Purchasers.
<PAGE> 181
Date:
By:
--------------------------
as, or as agent for, the
Holder of a beneficial
interest in the Securities
to which this certificate
relates
2
<PAGE> 182
EXHIBIT B-2
Form of Euroclear and Clearstream Certificate
Re: FLOWSERVE FINANCE B.V.
(the "Issuer") o% Senior Subordinated
Notes due 2010 (the "Notes")
, as
Paying Agent
[address of Paying Agent]
, as
Trustee
[address of Trustee]
This is to certify that, based solely on the certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount of the Securities set forth below (our "Member
Organizations") substantially to the effect set forth in the Indenture (the
"Indenture") dated as of o, 2000, between the Company and The Bank of New York,
as Trustee, Euro principal amount of the Securities held by us or our behalf are
beneficially owned by non-U.S. person(s). Capitalized terms used herein and not
otherwise defined have the meanings set forth in the Indenture. As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the United States Securities Act of 1933, as amended.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Securities identified above are no longer true and cannot be relied upon as of
the date hereof.
[Upon expiration of Restricted Period: We hereby acknowledge that no
portion of the Temporary Regulation S Global Security shall be exchanged for an
interest in the Permanent Regulation S Global Security with respect to the
portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
[On and upon any other payment under the Temporary
Regulation S Global Security: We hereby agree to hold (and return to the [ ]
upon request) any payments received by us on the Temporary Regulation S Global
Security with respect to the portion thereof for which we have not received the
applicable certificates from our Member Organizations.]
<PAGE> 183
We understand that this certification is required in connection with
certain securities laws of the United States of America. In connection
therewith, if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we irrevocable
authorized you to produce this certification to any interested party in such
proceedings.
Dated:
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office, as
operator of the Euroclear System
or
CLEARSTREAM BANKING, Societe Anonyme]
By:
----------------------------
Name:
Title:
---------
1. Insert dated of expiration of Restricted Period or
payment date, as the case may be.
2
