Exhibit 99.2
VALEANT PHARMACEUTICALS INTERNATIONAL
7.625% SENIOR NOTES DUE 2020
INDENTURE
DATED AS OF APRIL 9, 2010
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
AS TRUSTEE
CROSS-REFERENCE TABLE*
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TIA |
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INDENTURE |
SECTION |
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SECTION |
Section 310(a)(1) |
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7.10 |
(a)(2) |
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7.10 |
(a)(3) |
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N.A.** |
(a)(4) |
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N.A. |
(a)(5) |
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7.10 |
(b) |
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7.8; 7.10 |
(c) |
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N.A. |
Section 311(a) |
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7.11 |
(b) |
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7.11 |
(c) |
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N.A. |
Section 312(a) |
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2.5 |
(b) |
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11.3 |
(c) |
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11.3 |
Section 313(a) |
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7.6 |
(b)(1) |
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N.A. |
(b)(2) |
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7.6 |
(c) |
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7.6; 11.2 |
(d) |
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7.6 |
Section 314(a) |
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4.3; 4.5; 11.2 |
(b) |
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N.A. |
(c)(1) |
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11.4(a) |
(c)(2) |
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11.4(a) |
(c)(3) |
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N.A. |
(d) |
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N.A. |
(e) |
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11.4(b) |
(f) |
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N.A. |
Section 315(a) |
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7.1(b) |
(b) |
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7.5; 11.2 |
(c) |
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7.1(a) |
(d) |
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7.1(c) |
(e) |
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8.11 |
Section 316(a)(last sentence) |
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2.9 |
(a)(1)(A) |
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8.5 |
(a)(1)(B) |
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8.4 |
(a)(2) |
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N.A. |
(b) |
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8.7 |
(c) |
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11.5 |
Section 317(a)(1) |
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8.8 |
(a)(2) |
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8.9 |
(b) |
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2.4 |
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* |
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This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture. |
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** |
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N.A. means Not Applicable. |
TABLE OF CONTENTS
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Page |
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ARTICLE 1 |
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DEFINITIONS AND INCORPORATION BY REFERENCE |
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Section 1.1 |
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Definitions |
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1 |
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Section 1.2 |
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Other Definitions |
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21 |
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Section 1.3 |
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Trust Indenture Act Provisions |
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22 |
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Section 1.4 |
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Rules of Construction |
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23 |
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ARTICLE 2 |
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THE SECURITIES |
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Section 2.1 |
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Form and Dating |
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23 |
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Section 2.2 |
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Execution and Authentication |
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25 |
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Section 2.3 |
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Registrar and Paying Agent |
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25 |
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Section 2.4 |
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Paying Agent to Hold Money in Trust |
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26 |
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Section 2.5 |
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Securityholder Lists |
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26 |
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Section 2.6 |
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Transfer and Exchange |
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26 |
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Section 2.7 |
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Replacement Securities |
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27 |
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Section 2.8 |
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Outstanding Securities |
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27 |
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Section 2.9 |
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Treasury Securities |
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28 |
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Section 2.10 |
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Temporary Securities |
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28 |
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Section 2.11 |
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Cancellation |
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28 |
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Section 2.12 |
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Legend; Additional Transfer and Exchange Requirements |
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28 |
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Section 2.13 |
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CUSIP and ISIN Numbers |
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31 |
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ARTICLE 3 |
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REDEMPTION AND PURCHASES |
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Section 3.1 |
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Right to Redeem |
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31 |
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Section 3.2 |
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Selection of Securities to be Redeemed |
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31 |
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Section 3.3 |
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Notice of Redemption |
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32 |
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Section 3.4 |
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Effect of Notice of Redemption |
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32 |
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Section 3.5 |
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Deposit of Redemption Price |
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33 |
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Section 3.6 |
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Securities Redeemed in Part |
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33 |
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Section 3.7 |
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Optional Redemption |
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33 |
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Section 3.8 |
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Purchase of Securities at Option of the Holder Upon Change of Control |
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34 |
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Section 3.9 |
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Effect of Change of Control Purchase Notice |
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36 |
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Section 3.10 |
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Deposit of Change of Control Purchase Price |
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36 |
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Section 3.11 |
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Securities Purchased in Part |
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36 |
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Section 3.12 |
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Compliance With Securities Laws Upon Purchase of Securities |
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36 |
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Section 3.13 |
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Repayment to the Company |
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37 |
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Section 3.14 |
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Offer to Purchase by Application of Excess Proceeds |
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37 |
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Section 3.15 |
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Tax Redemption |
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38 |
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Page |
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ARTICLE 4 |
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COVENANTS |
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Section 4.1 |
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Payment of Securities |
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39 |
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Section 4.2 |
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Maintenance of Office or Agency |
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40 |
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Section 4.3 |
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Reports |
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40 |
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Section 4.4 |
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Compliance Certificates |
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41 |
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Section 4.5 |
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Further Instruments and Acts |
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41 |
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Section 4.6 |
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Maintenance of Corporate Existence |
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41 |
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Section 4.7 |
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Changes in Covenants when Securities Rated Investment Grade |
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42 |
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Section 4.8 |
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Restricted Payments |
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42 |
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Section 4.9 |
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Incurrence of Indebtedness and Issuance of Preferred Stock |
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45 |
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Section 4.10 |
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[Reserved] |
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47 |
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Section 4.11 |
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Liens |
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47 |
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Section 4.12 |
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Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
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48 |
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Section 4.13 |
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Transactions with Affiliates |
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49 |
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Section 4.14 |
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Asset Sales |
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50 |
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Section 4.15 |
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Additional Subsidiary Guarantees |
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52 |
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Section 4.16 |
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Designation of Restricted and Unrestricted Subsidiaries |
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52 |
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Section 4.17 |
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Business Activities |
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52 |
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Section 4.18 |
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Payments for Consent |
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52 |
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Section 4.19 |
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Stay, Extension and Usury Laws |
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53 |
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Section 4.20 |
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Payment of Additional Interest |
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53 |
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Section 4.21 |
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Notice of Default |
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53 |
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Section 4.22 |
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Payment of Additional Amounts by a Foreign Successor Issuer. |
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53 |
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ARTICLE 5 |
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MERGER, CONSOLIDATION OR SALE OF ASSETS |
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Section 5.1 |
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Merger, Consolidation or Sale of Assets |
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55 |
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Section 5.2 |
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Successor Substituted |
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56 |
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ARTICLE 6 |
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DEFAULT AND REMEDIES |
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Section 6.1 |
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Events of Default |
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57 |
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Section 6.2 |
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Acceleration |
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58 |
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Section 6.3 |
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Other Remedies |
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59 |
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Section 6.4 |
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Waiver of Defaults and Events of Default |
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59 |
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Section 6.5 |
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Control by Majority |
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59 |
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Section 6.6 |
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Limitations on Suits |
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59 |
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Section 6.7 |
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Rights of Holders to Receive Payment |
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60 |
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Section 6.8 |
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Collection Suit by Trustee |
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60 |
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Section 6.9 |
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Trustee May File Proofs of Claim |
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60 |
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Section 6.10 |
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Priorities |
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61 |
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Section 6.11 |
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Undertaking for Costs |
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61 |
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ARTICLE 7 |
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TRUSTEE |
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Section 7.1 |
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Duties of Trustee |
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61 |
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Section 7.2 |
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Rights of Trustee |
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62 |
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Section 7.3 |
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Individual Rights of Trustee |
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63 |
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Section 7.4 |
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Trustees Disclaimer |
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63 |
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Section 7.5 |
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Notice of Default or Events of Default |
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63 |
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Section 7.6 |
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Reports by Trustee to Holders |
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63 |
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Section 7.7 |
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Compensation and Indemnity |
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64 |
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Section 7.8 |
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Replacement of Trustee |
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64 |
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Section 7.9 |
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Successor Trustee by Merger, Etc. |
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65 |
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Section 7.10 |
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Eligibility; Disqualification |
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65 |
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Section 7.11 |
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Preferential Collection of Claims Against the Company |
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65 |
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ARTICLE 8 |
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DEFEASANCE; SATISFACTION AND
DISCHARGE OF INDENTURE |
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Section 8.1 |
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Satisfaction and Discharge of Indenture |
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66 |
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Section 8.2 |
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Legal Defeasance |
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66 |
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Section 8.3 |
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Covenant Defeasance |
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68 |
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Section 8.4 |
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Application of Trust Money |
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69 |
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Section 8.5 |
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Repayment to the Company |
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69 |
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Section 8.6 |
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Reinstatement |
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69 |
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ARTICLE 9 |
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AMENDMENTS, SUPPLEMENTS AND WAIVERS |
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Section 9.1 |
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Without Consent of Holders |
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70 |
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Section 9.2 |
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With Consent of Holders |
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70 |
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Section 9.3 |
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Compliance With Trust Indenture Act |
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71 |
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Section 9.4 |
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Revocation and Effect of Consents |
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71 |
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Section 9.5 |
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Notation on or Exchange of Securities |
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72 |
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Section 9.6 |
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Trustee to Sign Amendments, Etc. |
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72 |
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Section 9.7 |
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Effect of Supplemental Indentures |
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72 |
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ARTICLE 10 |
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SUBSIDIARY GUARANTEES |
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Section 10.1 |
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Guarantees |
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72 |
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Section 10.2 |
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Execution and Delivery of Subsidiary Guarantees |
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74 |
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Section 10.3 |
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Limitation on Guarantor Liability |
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74 |
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Section 10.4 |
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Merger and Consolidation of Guarantors |
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74 |
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Section 10.5 |
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Release |
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75 |
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ARTICLE 11 |
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MISCELLANEOUS |
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Section 11.1 |
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Trust Indenture Act Controls |
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75 |
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Section 11.2 |
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Notices |
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75 |
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Section 11.3 |
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Communications by Holders With Other Holders |
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76 |
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Section 11.4 |
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Certificate and Opinion of Counsel as to Conditions Precedent |
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77 |
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Section 11.5 |
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Record Date for Vote or Consent of Holders |
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77 |
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Section 11.6 |
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Rules by Trustee, Paying Agent and Registrar |
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77 |
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Section 11.7 |
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Legal Holidays |
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77 |
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Section 11.8 |
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Governing Law; Submission to Jurisdiction; Waiver of Jury Trial |
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78 |
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Section 11.9 |
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No Adverse Interpretation of Other Agreements |
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78 |
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Section 11.10 |
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No Recourse Against Others |
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78 |
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Section 11.11 |
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Successors |
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78 |
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Section 11.12 |
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Multiple Counterparts |
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78 |
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Section 11.13 |
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Separability |
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78 |
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Section 11.14 |
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Table of Contents, Headings, etc. |
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78 |
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Section 11.15 |
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Calculations in Respect of the Securities |
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78 |
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Section 11.16 |
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Agent for Service and Waiver of Immunities |
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78 |
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Section 11.17 |
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Judgment Currency |
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79 |
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EXHIBITS |
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EXHIBIT A |
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FORM OF NOTE |
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EXHIBIT B |
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FORM OF GUARANTEE |
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EXHIBIT C |
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FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR |
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-iv-
THIS INDENTURE dated as of April 9, 2010 is among Valeant Pharmaceuticals International, a
corporation duly organized under the laws of the State of Delaware (the Company), the Subsidiary
Guarantors party hereto and The Bank of New York Mellon Trust Company, N.A., a national banking
association duly organized under the laws of the United States, as Trustee (the Trustee).
In consideration of the premises and the purchase of the Securities by the Holders thereof,
all parties agree as follows for the benefit of the other and for the equal and ratable benefit of
the registered Holders of the Companys 7.625% Senior Notes due 2020.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Subsidiary of such specified Person and which is not satisfied in
full at such time, whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such
specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
Additional Interest means liquidated damages as defined in Section 5 of the Registration
Rights Agreement. All references herein to interest accrued or payable as of any date shall
include any Additional Interest accrued or payable as of such date as provided in the Registration
Rights Agreement.
Additional Securities means any additional 7.625% Senior Notes due 2020 that the Company may
issue from time to time under this Indenture in accordance with Section 2.1(c) of this Indenture as
part of the same series of Securities issued on the date hereof.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, control, as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise;
provided, that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed
to be control. For purposes of this definition, the terms controlling, controlled by and
under common control with have correlative meanings.
Agent means any Registrar or Paying Agent.
Applicable Premium means, as determined by the Company, with respect to a Security, the
greater of
(1) 1.0% of the then outstanding principal amount of such Security and
(2) (a) the present value of all remaining required interest and principal payments due
on such Security and all premium payments relating to such Security assuming a
redemption date of March 15, 2015, computed using a discount rate equal to the
Treasury Rate plus 50 basis points, minus
(b) the then outstanding principal amount of such Security, minus
(c) accrued interest paid on the date of redemption.
Applicable Procedures means, with respect to any transfer or exchange of beneficial
ownership interests in the Global Securities, the rules and procedures of the Depositary, to the
extent applicable to such transfer or exchange.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any assets, property or rights;
provided, that the sale, conveyance or other disposition of all or substantially all of the
assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by
Section 3.8 and/or Section 5.1 hereof and not by the provisions of Section 4.14; and
(2) the issuance of Equity Interests by any of the Companys Restricted Subsidiaries or
the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that involves assets
having a Fair Market Value of less than $7.5 million;
(2) a transfer of assets between or among the Company and its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary;
(4) the sale or lease of equipment, inventory or accounts receivable in the ordinary
course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) a Restricted Payment or Permitted Investment that is permitted by Section 4.8
hereof;
(7) the license of intellectual property to third persons in the ordinary course of
business as determined by the Board of Directors of the Company in good faith;
(8) the sale, exchange or other disposition of obsolete assets not integral to any
Permitted Business; and
(9) sales, transfers or other dispositions of assets for consideration at least equal
to the Fair Market Value of the assets sold or disposed of, but only if the consideration
received consists of property or assets (other than cash, except to the extent used as a
bona fide means of equalizing the value of the property or assets involved in the swap
transaction; provided, however, that cash does not exceed 10% of the sum of the amount of
the cash and the Fair Market Value of the assets received or given) of a nature or type that
are used in, a business having
-2-
property or assets of a nature or type or engaged in a Permitted Business (or Capital
Stock of a Person whose assets consist of assets of the type described in this clause (9)).
Attributable Debt in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP.
Bankruptcy Law means Title 11 of the United States Code (or any successor thereto) or any
similar federal or state law for the relief of debtors.
Beneficial Owner has the meaning assigned to such term in Rule l3d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular person
(as that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to
have beneficial ownership of all securities that such person has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms Beneficially Owns and
Beneficially Owned have corresponding meanings.
Board of Directors means:
(1) with respect to a company or corporation, the board of directors of the company or
corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership or any committee thereof duly authorized to act on behalf of such board; and
(3) with respect to any other Person, the board or committee of such Person serving a
similar function.
Business Day means each day that is not a Legal Holiday.
Capital Lease Obligations means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet in accordance with GAAP.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.
-3-
Cash Equivalents means:
(1) securities issued or directly and fully guaranteed or insured by the U.S.
government or any agency or instrumentality thereof (provided, that the full faith and
credit of the U.S. is pledged in support thereof) having repricings or maturities of not
more than one year from the date of acquisition;
(2) certificates of deposit and time deposits with maturities of one year or less from
the date of acquisition, bankers acceptances with maturities not exceeding one year and
overnight bank deposits, in each case, with any domestic commercial bank having capital and
surplus in excess of $500.0 million and a Thomson Bank Watch Rating of B or better;
(3) repurchase obligations with a term of not more than 14 days for underlying
securities of the types described in clauses (1) and (2) above entered into with any
financial institution meeting the qualifications specified in clause (2) above;
(4) commercial paper having a rating of at least P-2 or better from Moodys or at
least A-2 or better from S&P, or carrying an equivalent rating by an internationally
recognized rating agency and, in each case, maturing within one year after the date of
acquisition;
(5) Auction-rate, corporate and municipal securities, in each case (x) having either
short-term debt ratings of at least P-2 or better from Moodys or at least A-2 or better
from S&P or long-term senior debt ratings of A2 or better from Moodys or at least A or
better from S&P, or carrying an equivalent rating by an internationally recognized rating
agency, (y) having repricings or maturities of not more than one year from the date of
acquisition and (z) which are classifiable as cash and cash equivalents under GAAP;
(6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition; or
(7) in the case of any foreign Subsidiary:
(a) direct obligations of the sovereign nation, or any agency thereof, in which
such foreign Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation, or any agency
thereof; provided, that such obligations are acquired and held by such foreign
Subsidiary in the ordinary course of business and have repricings or maturities of
not more than one year from the date of acquisition; or
(b) investments of the type and maturity described in clauses (1) through (5)
above of foreign obligors, which investments or obligors have ratings described in
such clauses or equivalent ratings from internationally recognized rating agencies;
provided, that such investments are acquired and held by such foreign Subsidiary in
the ordinary course of business.
Change of Control means the occurrence of any of the following:
(1) any person (as that term is used in Section 13(d)(3) of the Exchange Act) becomes
the Beneficial Owner of shares of the Companys Voting Stock representing (i) 50% or more of
the total voting power of all of the Companys outstanding Voting Stock or (ii) the
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power, directly or indirectly, or elect a majority of the members of the Companys
Board of Directors;
(2) the Company consolidates with, or merges with or into, another Person, or the
Company, directly or indirectly, sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries, taken as a whole (other than by way of merger or consolidation), in
one or a series of related transactions, or any Person consolidates with, or merges with or
into, the Company, in any such event other than pursuant to a transaction in which the
Persons that Beneficially Owned the shares of the Companys Voting Stock immediately prior
to such transaction Beneficially Own at least a majority of the total voting power of all
outstanding Voting Stock (other than Disqualified Stock) of the surviving or transferee
Person;
(3) the holders of the Companys Capital Stock approve any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in compliance with this
Indenture);
(4) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for election by the
shareholders of the Company has been approved by a majority of the directors then still in
office who either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a majority of
the Board of Directors of the Company; or
(5) in connection with a Permitted Merger, the holders of all of the Companys
outstanding Voting Stock prior to the Permitted Merger hold less than 50.1% of the
outstanding Voting Stock of the Company (or the successor entity) after giving effect to the
Permitted Merger and all related transactions (including any Restricted Payments permitted
under Section 4.8 hereof).
Clearstream means Clearstream Banking, societe anonyme, Luxembourg.
Common Stock means the common stock of the Company, $.01 par value per share, as it exists
on the date of this Indenture and any shares of any class or classes of capital stock of the
Company resulting from any reclassification or reclassifications thereof and which have no
preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are not subject to
redemption by the Company.
Company means the party named as such in the first paragraph of this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter
Company shall mean such successor Company.
Consolidated Cash Flow means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:
(1) an amount equal to any extraordinary loss plus any net loss realized by such Person
or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such
losses were deducted in computing such Consolidated Net Income; plus
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(2) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, commissions, discounts
and other fees and charges incurred in respect of letter of credit or bankers acceptance
financings, and net of the effect of all payments made or received pursuant to Interest Rate
Hedging Obligations), to the extent that any such expense was deducted in computing such
Consolidated Net Income; plus
(4) any restructuring charges (which, for the avoidance of doubt, shall include
retention, severance, systems establishment costs, excess pension charges, contract
termination costs and costs to consolidate facilities and relocate employees), to the extent
that any such charge or expense was deducted in computing such Consolidated Net Income; plus
(5) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period), and other non-cash
charges or expenses (excluding any such non-cash charge or expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation, amortization and other
non-cash charge or expenses were deducted in computing such Consolidated Net Income; minus
(6) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the
Company will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company
only to the extent that a corresponding amount would be permitted at the date of determination to
be dividended to the Company by such Restricted Subsidiary without prior governmental approval
(that has not been obtained), and without direct or indirect restriction pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its stockholders.
Consolidated Net Income means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included only to the extent
of the amount of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of
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that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting principles will be excluded;
(4) any extraordinary or nonrecurring gain or loss and any expense or charge in
connection with acquired intellectual property and research & development will be excluded;
(5) any extraordinary or nonrecurring gain or loss and any expense or charge
attributable to the disposition of discontinued operations will be excluded;
(6) charges incurred in connection with the retirement or redemption of the 3%
Convertible Subordinated Notes due 2010, the 4% Convertible Subordinated Notes due 2013 and
the 8.375% Senior Notes due 2016 will be excluded;
(7) any gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of
any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of
any Indebtedness of such Person or any of its Restricted Subsidiaries will be excluded; and
(8) any extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss) will be excluded.
Consolidated Total Assets means, as of any date of determination, the total assets shown on
the consolidated balance sheet of the Company and its Restricted Subsidiaries as of the most recent
date for which such a quarterly balance sheet is available, determined on a consolidated basis in
accordance with GAAP (and in the case of any determination relating to any incurrence of
Indebtedness, Investment or a Permitted Merger, on a pro forma basis). In addition, Consolidated
Total Assets will be calculated in a manner consistent with the definition of Fixed Charge
Coverage Ratio to give effect to transactions that occurred after the date of the most recent
quarterly balance sheet date.
Corporate Trust Office means the designated office of the Trustee at which at any particular
time its corporate trust business shall be administered which office at the date of the execution
of this Indenture is located at 700 South Flower Street, Suite 500, Los Angeles, California 90017,
Attention: Corporate Trust Administration or at any other time at such other address as the
Trustee may designate from time to time by notice to the Company.
Credit Facilities means, one or more debt facilities, credit agreements, commercial paper
facilities, indentures or other agreements, in each case with banks, institutional lenders,
purchasers, investors, trustees or agents providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables), letters of credit or
other extensions of credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
Custodian means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
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Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Definitive Securities means Securities that are in substantially the form attached hereto as
Exhibit A and that do not include the information to which footnotes 1, 6 and 7 thereof apply.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the
Securities mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset
sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the
Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such
repurchase or redemption complies with Section 4.8 hereof
Domestic Subsidiary means any Restricted Subsidiary that was formed under the laws of the
United States or any state thereof or the District of Columbia.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
Equity Offering means a public or private offering of Equity Interests (other than
Disqualified Stock).
European Union Member State means any nation that is a member of the European Union.
Euroclear means Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.
Exchange Securities means the 7.625% Senior Notes due 2020 to be issued by the Company
pursuant to this Indenture in the Exchange Offer.
Exchange Offer means the exchange and issuance by the Company of a principal amount of
Exchange Securities (which shall be registered pursuant to the Exchange Offer Registration
Statement) equal to the outstanding principal amount of Securities that are properly tendered and
not subsequently withdrawn by such Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement means the Registration Statement relating to the
Exchange Offer, including the related Prospectus.
Existing Indebtedness means Indebtedness of the Company and its Restricted Subsidiaries
(other than Indebtedness, if any, under Credit Facilities incurred under Section 4.9(b)(i) hereof)
in existence on the date of this Indenture, until such amounts are repaid.
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Fair Market Value means the price that could be negotiated in an arms-length transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom is under undue
pressure or compulsion to complete the transaction, determined in good faith by the Board of
Directors of the Company (unless otherwise provided in this Indenture).
Final Maturity Date, means March 15, 2020.
Fixed Charge Coverage Ratio means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness (other
than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated and on or prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio will
be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred
stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through consolidations or mergers and including any related
financing transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date will be given pro forma effect as
if they had occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period will be calculated on a pro forma basis in accordance
with Regulation S-X promulgated by the Commission;
(2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date.
Fixed Charges means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of letter of
credit or bankers acceptance financings, and net of the effect of all payments made or
received pursuant to Interest Rate Hedging Obligations; plus
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(2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon;
plus
(4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividends on Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company,
times (b) a fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP.
Foreign Successor Entity means (i) any entity that is organized in a jurisdiction other than
the United States, any state thereof or the District of Columbia (a Foreign Jurisdiction) and
becomes a successor of the Company as a result of a merger or other transaction or (ii) the
Company, if the Company changes its place of organization to a Foreign Jurisdiction.
GAAP means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect from time to time.
Global Securities means Securities that are substantially in the form attached hereto as
Exhibit A and that include the information called for by footnotes 1, 6 and 7 thereof, and which
are deposited with the Depositary or its custodian and registered in the name of the Depositary or
its nominee.
Guarantee means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness.
Hedging Obligations means, with respect to any specified Person:
(1) Interest Rate Hedging Obligations; and
(2) the obligations of such Person under agreements or arrangements designed to protect
such Person against fluctuations in currency exchange rates.
Holder or Securityholder means the person in whose name a Security is registered on the
Registrars books.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:
(1) in respect of borrowed money;
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(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);
(3) in respect of bankers acceptances;
(4) representing Capital Lease Obligations or Attributable Debt in respect of sale and
leaseback transactions;
(5) representing the balance deferred and unpaid of the purchase price of any property,
except any such balance that constitutes an accrued expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit, Attributable Debt
and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term Indebtedness includes all Indebtedness
of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount; and
(2) the principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.
Indenture means this Indenture as amended or supplemented from time to time pursuant to the
terms of this Indenture.
Interest on any Security shall refer to interest and Additional Interest, if any, thereon,
unless the context otherwise requires.
Interest Rate Hedging Obligations means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements; and
(2) other agreements or arrangements designed to protect such Person against
fluctuations in interest rates.
Investment Grade Rating means a rating of Baa3 or better by Moodys and BBB- or better by
S&P (or its equivalent under any successor rating categories of S&P) (or, in each case, if such
Rating Agency ceases to rate the Securities for reasons outside of the control of the Company, the
equivalent investment grade credit rating from any Rating Agency selected by the Company as a
replacement Rating Agency).
Investments means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other
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obligations), advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with
all items that are or would be classified as investments on a balance sheet prepared in accordance
with GAAP. If (i) the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company or (ii) a Restricted Subsidiary is redesignated as an
Unrestricted Subsidiary, the Company will be deemed to have made an Investment on the date of any
such sale, disposition or redesignation equal to the Fair Market Value of the Companys Investments
in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section
4.8(c) hereof. The acquisition by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person will be deemed to be an Investment by the Company
or such Restricted Subsidiary in such third Person (but only to the extent such Investment in a
third person is material to the acquired entity) in an amount equal to the Fair Market Value of the
Investments held by the acquired Person in such third Person in an amount determined as provided in
Section 4.8(c) hereof. For the avoidance of doubt, acquisitions of or licenses for products or
assets used or useful in a Permitted Business do not constitute Investments.
Issue Date means April 9, 2010, the date of the initial issuance of the Securities under
this Indenture.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge (fixed and/or
floating), security interest or encumbrance of any kind in respect of such asset, whether or not
filed, recorded or otherwise perfected under applicable law, including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any financing statement
under the uniform Commercial Code (or equivalent statutes) of any jurisdiction.
Liquidated Damages has the meaning given to such term or similar terms (including
Additional Interest) in the Registration Rights Agreement.
Moodys means Moodys Investors Service, Inc., or any successor to the rating agency
business thereof.
Net Income means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends.
Net Proceeds means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any relocation expenses incurred
as a result of the Asset Sale, taxes paid or payable as a result of the Asset Sale, in each case,
after taking into account any available tax credits or deductions and any tax sharing arrangements,
and amounts required to be applied to the repayment of Indebtedness, other than Indebtedness under
a Credit Facility, secured by a Lien on the asset or assets that were the subject of such Asset
Sale and any reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
Non-Recourse Debt means Indebtedness:
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(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) constitutes the lender;
(2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness (other than
the Securities) of the Company or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment of the Indebtedness to be accelerated or
payable prior to its stated maturity; and
(3) as to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.
Non-U.S. Person means a Person who is not a U.S. Person.
Obligations means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.
Officer means the Chairman of the Board, the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Controller, Treasurer, the Secretary or any
Assistant Controller, Assistant Treasurer or Assistant Secretary of the Company.
Officers Certificate means a certificate signed by two officers; provided, however, that
for purposes of Section 4.4 hereof, Officers Certificate means a certificate signed by the
principal executive officer, principal financial officer or principal accounting officer of the
Company and by one other Officer.
Opinion of Counsel means a written opinion from legal counsel. The counsel may be an
employee of or counsel to Company.
Participant means, with respect to the Depositary, Euroclear or Clearstream, a person who
has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to
the Depository Trust Company, shall include Euroclear and Clearstream.
Permitted Business means any business conducted by the Company and its Restricted
Subsidiaries on the date of this Indenture and any business that is in the judgment of the Company
reasonably related, ancillary or complimentary to the business of the Company and its Restricted
Subsidiaries on the date of this Indenture.
Permitted Investments means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any Investment in cash and Cash Equivalents;
(3) any Investment by the Company or any Subsidiary of the Company in a Person, if as a
result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
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(b) such Person is merged or consolidated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.14 hereof;
(5) any Investments made solely in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company;
(6) any Investments received in compromise of obligations of such persons incurred in
the ordinary course of trade creditors or customers that were incurred in the ordinary
course of business, including pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor or customer;
(7) Investments represented by Hedging Obligations;
(8) Investments in existence on the date of this Indenture;
(9) 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;
(10) Advances to employees in the ordinary course of business of the Company or a
Restricted Subsidiary;
(11) Investments in a Permitted Joint Venture, when taken together with all other
Investments made pursuant to this clause (11) that are at the time outstanding not to exceed
the greater of (x) $100.0 million and (y) 10% of Consolidated Total Assets; and
(12) other Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this clause (12)
that are at the time outstanding not to exceed the greater of (x) $100.0 million and (y) 10%
of Consolidated Total Assets.
Permitted Joint Venture means any joint venture (which may be in the form of a limited
liability company, partnership, corporation or other entity) in which the Company or any of its
Restricted Subsidiaries is a joint venturer; provided, however, that (a) the joint venture is
engaged solely in a Permitted Business and (b) the Company or a Restricted Subsidiary is required
by the governing documents of the joint venture or an agreement with the other parties to the joint
venture to participate in the management of such joint venture as a member of such joint ventures
Board of Directors or otherwise.
Permitted Liens means:
(1) Liens securing Indebtedness and other Obligations under Credit Facilities that were
permitted by the terms of this Indenture to be incurred under Section 4.9(b)(i) hereof;
(2) Liens in favor of the Company;
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(3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with or is acquired by the Company or any Subsidiary of the Company;
provided, that such Liens were not incurred in contemplation of such merger, consolidation
or acquisition and do not extend to any assets other than those of the Person merged into,
consolidated with or acquired by the Company or the Subsidiary;
(4) Liens on property existing at the time of acquisition of the property by the
Company or any Subsidiary of the Company, provided, that such Liens were not incurred in
contemplation of such acquisition;
(5) Liens to secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary course of
business;
(6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by
Section 4.9(b)(iv) hereof, covering only the assets acquired with such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided, that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;
(9) Liens securing Hedging Obligations;
(10) Liens arising by reason of deposits necessary to obtain standby letters of credit
in the ordinary course of business (including deposits necessary to obtain standby letters
of credit);
(11) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under the Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the original
Lien arose, could secure the original Lien (plus improvements and accessions to,
such property or proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased to any amount
greater than the sum of (x) the outstanding principal amount or, if greater,
committed amount, of the Permitted Refinancing Indebtedness and (y) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancings, refunding, extension, renewal or replacement;
(12) Liens incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that do not exceed $50.0 million at
any one time outstanding;
(13) survey title exceptions, title defects, encumbrances, easements, reservations of,
or rights of others for, rights of way, sewers, electric lines, telegraph or telephone lines
and other similar purposes or zoning or other restrictions as to the use of real property
not materially
-15-
interfering with the ordinary conduct of the business of the Company and its
Subsidiaries taken as a whole;
(14) Liens arising by operation of law in favor of landlords, mechanics, carriers,
warehousemen, materialmen, laborers, employees, suppliers or the like, incurred in the
ordinary course of business for sums which are not yet delinquent or are being contested in
good faith by negotiations or by appropriate proceedings which suspend the collection
thereof;
(15) Liens arising out of judgments, decrees, orders or awards in respect of which the
Company shall in good faith be prosecuting an appeal or proceedings for review which appeal
or proceedings shall not have been finally terminated, or if the period within which such
appeal or proceedings may be initiated shall not have expired.
(16) Liens securing the Securities and the Subsidiary Guarantees;
(17) Liens securing one or more local working capital facilities of foreign Restricted
Subsidiaries, so long as such Liens do not extend to the assets of any Person other than
such foreign Restricted Subsidiaries; and
(18) Liens securing Indebtedness incurred by Restricted Subsidiaries that are not
Domestic Subsidiaries pursuant to Section 4.9(b)(12) hereof.
Permitted Merger means a merger, consolidation, acquisition or other business combination of
the Company and a Permitted Merger Party consummated in compliance with Section 5.1 hereof (such
entity, the Surviving Person).
Permitted Merger Conditions means, after giving pro forma effect to (i) the Permitted
Merger, (ii) the payment of any Restricted Payments necessary to consummate the Permitted Merger
and (iii) the incurrence of Indebtedness necessary to consummate the Permitted Merger:
(1) no Default or Event of Default exists or would result therefrom;
(2) the Company (or the Surviving Person, if other than the Company, or any direct or
indirect parent of the Surviving Person) shall be a publicly-traded corporation subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act;
(3) the Company (or the Surviving Person, if other than the Company) would have
unrestricted cash, Cash Equivalents and undrawn availability under Credit Facilities in an
aggregate amount not less than $100.0 million;
(4) the Company has received written confirmation from each Rating Agency that the
Notes will not be downgraded as a result of the Permitted Merger and any related
transactions (including but not limited to any incurrence of Indebtedness or Restricted
Payments made to consummate such Permitted Merger);
(5) the Company (or the Surviving Person, if other than the Company) would have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.9(a) hereof; and
(6) the pro forma Total Leverage Ratio would be either (x) less than or equal to 2.5 to
1.0 or (y) lower than the Companys Total Leverage Ratio immediately prior to the
-16-
consummation of such Permitted Merger and related incurrence of Indebtedness and making
of related Restricted Payments.
Permitted Merger Party means any entity (including, without limitation, any corporation,
limited liability company, or limited partnership) that (i) is engaged in Permitted Businesses
(other than businesses that would not be material to the Company and the Permitted Merger Party,
taken as a whole) and (ii) prior to the Permitted Merger had an equity market capitalization of at
least $1.0 billion or, if less than $1.0 billion, an equity market capitalization of at least 30%
of the Companys equity market capitalization prior to the consummation of the Permitted Merger.
Permitted Refinancing Indebtedness means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided, that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest on the Indebtedness and the amount of all expenses and
premiums incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Securities, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of, and is
subordinated in right of payment to, the Securities on terms at least as favorable to the
Holders of Securities as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded;
(4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and
(5) if the Indebtedness being refinanced is Indebtedness of the Company or a Subsidiary
Guarantor, such Permitted Refinancing Indebtedness is also Indebtedness of the Company or a
Subsidiary Guarantor.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Principal or principal of a debt security, including the Securities, means the principal
of the security plus, when appropriate, the premium, if any, on the security.
Prospectus means the prospectus included in a Registration Statement at the time such
Registration Statement is declared effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
-17-
Rating Agency means (1) each of Moodys and S&P and (2) if Moodys or S&P ceases to rate the
Securities for reasons outside of the control of the Company, a nationally recognized statistical
rating organization under the Exchange Act selected by the Company as a replacement agency for
Moodys or S&P, as the case may be.
Redemption Date or redemption date means the date specified for redemption of the
Securities in accordance with the terms thereof and this Indenture.
Registration Rights Agreement means the Registration Rights Agreement, dated as of April 9,
2010 among the Company, the Subsidiary Guarantors and Goldman, Sachs & Co., as representative of
the initial purchasers referred to therein.
Registration Statement means any registration statement of the Company under the Securities
Act relating to an offering of Exchange Securities pursuant to the Exchange Offer, including the
Prospectus included therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Regulation S means Regulation S under the Securities Act or any successor to such
regulation.
Regulation S Global Security means a Global Security in substantially the form of Exhibit A
hereto that includes the information called for by footnotes 1, 6 and 7 thereof and that is
deposited with or on behalf of and registered in the name of the Depositary or its nominee.
Restricted Definitive Security means a Definitive Security that is a Restricted Security.
Restricted Global Security means a permanent Global Security in substantially the form of
Exhibit A attached hereto that bears the Global Security Legend and that has the Schedule of
Exchanges of Interests in the Global Security attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary or a nominee of the Depositary, representing
Securities that bear the Legend.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Security means a Security required to bear the restricted legend set forth in the
form of Securities set forth in Exhibit A of this Indenture.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.
Rule 144 means Rule 144 promulgated under the Securities Act or any successor to such rule.
Rule 144A means Rule 144A promulgated under the Securities Act or any successor to such
rule.
Rule 903 means Rule 903 promulgated under the Securities Act.
Rule 904 means Rule 904 promulgated under the Securities Act.
S&P means Standard & Poors Ratings Group, Inc., or any successor to the rating agency
business thereof.
SEC means the Securities and Exchange Commission.
-18-
Secured Leverage Ratio means the ratio of (i) total consolidated Indebtedness of the Company
and the Restricted Subsidiaries that is secured by a Lien on assets of the Company and the
Restricted Subsidiaries, after giving effect to all incurrences and repayments of Indebtedness on
the relevant transaction date, to (ii) Consolidated Cash Flow for the most recent four consecutive
full fiscal quarters for which financial statements are available ending on or prior to the
transaction date. In addition, the Secured Leverage Ratio will be calculated in a manner
consistent with the definition of Fixed Charge Coverage Ratio to give effect to transactions that
would require pro forma adjustments to such ratio.
Securities means any of the 7.625% Senior Notes due 2020 (each, a Security), as amended or
supplemented from time to time, that are issued under this Indenture.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
Securities Custodian means the Trustee, as custodian with respect to the Securities in
global form, or any successor thereto.
Significant Subsidiary means any Subsidiary that would be a significant subsidiary as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated by the Commission, as such
regulation is in effect on the date hereof.
Stated Maturity means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees of the
corporation, association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination
thereof).
Subsidiary Guarantee means each Guarantee of the Obligations with respect to the Securities
issued by a Subsidiary of the Company pursuant to the terms of this Indenture.
Subsidiary Guarantor means any Subsidiary that has issued a Subsidiary Guarantee.
TIA means the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except as provided in Section 9.3 hereof,
and except to the extent any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another date.
Total Leverage Ratio means the ratio of (i) total consolidated Indebtedness of the Company
and the Restricted Subsidiaries, after giving effect to all incurrences and repayments of
Indebtedness on
-19-
the transaction date, to (ii) Consolidated Cash Flow for the most recent four consecutive full
fiscal quarters for which financial statements are available ending on or prior to the transaction
date. In addition, the Total Leverage Ratio will be calculated in a manner consistent with the
definition of Fixed Charge Coverage Ratio to give effect to the transactions that would require
pro forma adjustments to such ratio.
Treasury Rate means, as determined by the Company, the rate per annum equal to the yield to
maturity at the time of computation of the United States Treasury securities with a constant
maturity most nearly equal to the period from such date of redemption to March 15, 2015; provided,
however, that if the period from such date of redemption to March 15, 2015 is not equal to the
constant maturity of a United States Treasury security for which a weekly average yield is given,
the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities for which such
yields are given, except that if the period from such date of redemption to March 15, 2015 is less
than one year, the weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
Trustee means the party named as such in the first paragraph of this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and thereafter means the
successor.
Trust Officer shall mean, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant 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
persons knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
Unrestricted Definitive Security means a Definitive Security that is not a Restricted
Security.
Unrestricted Global Security means a Global Security that is not a Restricted Security.
Unrestricted Subsidiary means any Subsidiary of the Company that is designated by the Board
of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons who are not
Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Persons financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.
-20-
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to
such designation and an Officers Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.8 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date, and, if such Indebtedness is not permitted to be incurred as of such date
under Section 4.9 hereof, the Company will be in default of such covenant. The Board of Directors
of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation will only be permitted if (1) such Indebtedness is permitted under Section 4.9 hereof,
calculated on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be in existence
following such designation.
U.S. 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 issuers option.
Vice President when used with respect the Company or the Trustee, means any vice president,
whether or not designated by a number or a word or words added before or after the title vice
president.
Voting Stock of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
Section 1.2 Other Definitions.
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|
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DEFINED IN |
TERM |
|
SECTION |
Additional
Amounts |
|
4.22(a) |
Affiliate Transaction |
|
4.13(a) |
Agent Members |
|
2.1(b) |
Asset Sale Offer |
|
4.14(c)/3.14 |
Authorized Agent |
|
11.16 |
Benefited Party |
|
10.1(b) |
Change of Control Offer |
|
3.8(b) |
Change of Control Purchase Date |
|
3.8(b) |
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|
|
|
|
|
DEFINED IN |
TERM |
|
SECTION |
Change of Control Purchase Notice |
|
3.8(c) |
Change of Control Purchase Price |
|
3.8(a) |
Covenant Defeasance |
|
8.3 |
DTC |
|
2.1(a) |
Depositary |
|
2.1(a) |
EU Savings Tax Directive |
|
4.22(b)(vi) |
EU-Swiss Savings Tax Agreement |
|
4.22(b)(vi) |
Event of Default |
|
6.1 |
Excess Proceeds |
|
4.14(c) |
Foreign Jurisdiction |
|
1.1 |
incur |
|
4.9(a) |
Judgment Currency |
|
11.17 |
Legal Defeasance |
|
8.2 |
Legal Holiday |
|
11.7 |
Legend |
|
2.12(a) |
Notice of Default |
|
6.1 |
Company Notice |
|
3.8(b) |
Company Order |
|
2.2 |
Offer Amount |
|
3.14 |
Offer Period |
|
3.14 |
Parity Indebtedness |
|
3.14 |
Paying Agent |
|
2.3 |
Payment Default |
|
6.1(e) |
Payor |
|
4.22(a) |
Permitted Debt |
|
4.9(b) |
Purchase Date |
|
3.14 |
QIB |
|
2.1 |
Registrar |
|
2.3 |
Relevant Taxing Jurisdiction |
|
4.22(a) |
Restricted Payments |
|
4.8(a) |
Successor Date |
|
4.22(f) |
Surviving Person |
|
1.1 |
Tax |
|
4.22(a) |
Section 1.3 Trust Indenture Act Provisions. Whenever this Indenture refers to a
provision of the TIA, that provision is incorporated by reference in and made a part of this
Indenture. The Indenture shall also include those provisions of the TIA required to be included
herein by the provisions of the Trust Indenture Reform Act of 1990. The following TIA terms used
in this Indenture have the following meanings:
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;
-22-
obligor on the indenture securities means the obligors or any other obligor on the
Securities.
All other terms used in this Indenture that are defined in the TIA, defined by TIA reference
to another statute or defined by any SEC rule and not otherwise defined herein have the meanings
assigned to them therein.
Section 1.4 Rules of Construction. Unless the context otherwise requires:
(A) a term has the meaning assigned to it;
(B) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(C) words in the singular include the plural, and words in the plural include the
singular;
(D) provisions apply to successive events and transactions;
(E) the term merger includes a statutory share exchange and the term merged has a
correlative meaning;
(F) the masculine gender includes the feminine and the neuter;
(G) references to agreements and other instruments include subsequent amendments
thereto;
(H) herein, hereof and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and
(I) references to ratings by Moodys or S&P shall include any successor equivalent
ratings if either Moodys or S&P changes its ratings scale subsequent to the date of this
Indenture.
ARTICLE 2
THE SECURITIES
Section 2.1 Form and Dating. The Securities and the Trustees certificate of
authentication shall be substantially in the form set forth in Exhibit A, which is incorporated in
and made part of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. The Securities shall be in a minimum
denomination of $2,000 and integral multiples of $1,000 in excess thereof. Each Security shall be
dated the date of its authentication. The Securities are being offered and sold by the Company in
transactions exempt from, or not subject to, the registration requirements of the Securities Act.
(a) Restricted Global Securities. All of the Securities are initially being
offered and sold to (i) qualified institutional buyers as defined in Rule 144A
(collectively, QIBs or individually, each a QIB) in reliance on Rule 144A under the
Securities Act or (ii) outside the United States to persons other than U.S. persons in
reliance upon Regulation S under the Securities Act, and shall be issued initially in the
form of one or more Restricted Global
-23-
Securities, which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, as custodian for the depositary, The Depository Trust
Company (DTC) (such depositary, or any successor thereto, being hereinafter referred to as
the Depositary), and registered in the name of its nominee, Cede & Co., duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Restricted Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Securities Custodian as hereinafter
provided, subject in each case to compliance with the Applicable Procedures.
(b) Form of Securities. Global Securities shall be substantially in the form
of Exhibit A attached hereto (including the Global Security Legend thereon and the Schedule
of Exchanges of Interests in the Global Security attached thereto). Definitive Securities
shall be substantially in the form of Exhibit A attached hereto (but without the Global
Security Legend thereon and without the Schedule of Exchanges of Interests in the Global
Security attached thereto). Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Securities from time to time endorsed thereon and
that the aggregate principal amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Security to reflect the amount of any increase or decrease in
the aggregate principal amount of outstanding Securities represented thereby shall be made
by the Trustee or the Securities Custodian, at the direction of the Trustee, in accordance
with instructions given by the Holder thereof as required by Section 2.12 hereof and shall
be made on the records of the Trustee and the Depositary.
Members of, or participants in, the Depositary (Agent Members) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the
Depositary or under the Global Security, and the Depositary (including, for this purpose,
its nominee) may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or (B) impair, as
between the Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(c) Additional Securities. Subject to compliance with the provisions of
Section 4.9 hereof, the Company may issue Additional Securities in an unlimited amount under
this Indenture.
(d) Regulation S Global Securities. Securities offered and sold in reliance on
Regulation S shall be issued in the form of the Regulation S Global Security, which shall be
deposited on behalf of the purchasers of the Securities represented thereby with the
Trustee, as custodian for the Depositary, and registered in the name of the Depositary or
the nominee of the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Regulation S Global Securities
may from time to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(e) Book Entry Provisions. The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(e), authenticate and deliver initially one or more Global
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Securities that (i) shall be registered in the name of the Depositary or its nominee,
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the Depositarys
instructions and (iii) shall bear legends substantially in the form of the first paragraph
of Exhibit A hereto.
Section 2.2 Execution and Authentication. An Officer of each of the Company shall
sign the Securities for the Company by manual or facsimile signature. Typographic and other minor
errors or defects in any such facsimile signature shall not affect the validity or enforceability
of any Security which has been authenticated and delivered by the Trustee.
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 shall authenticate and make available for delivery Securities for original issue
in an initial aggregate principal amount of $400,000,000 upon receipt of a written order or orders
of the Company signed by an Officer of the Company (a Company Order). The Company Order shall
specify the amount of Securities to be authenticated and shall provide that all such Securities
will be represented by a Restricted Global Security and the date on which each original issue of
Securities is to be authenticated. The aggregate principal amount of Securities outstanding at any
time may not exceed the amounts in the foregoing sentence, except as provided in Sections 2.1(c),
2.1(d) and 2.7 hereof.
The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Securities. 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 shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
The Securities shall be issuable only in registered form without coupons and only in minimum
denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof.
Section 2.3 Registrar and Paying Agent. The Company shall maintain one or more
offices or agencies where Securities may be presented for registration of transfer or for exchange
(each, a Registrar), one or more offices or agencies where Securities may be presented for
payment (each, a Paying Agent) and one or more offices or agencies where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be served. The Company
will at all times maintain a Paying Agent, Registrar and an office or agency where notices and
demands to or upon the Company in respect of the Securities and this Indenture may be served in the
Borough of Manhattan, The City of New York. The Registrar shall keep a register of the Securities
and of their transfer and exchange.
The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar, Paying Agent or agent for service of
notices and demands in any place required by this Indenture, or fail to give the foregoing notice,
the Trustee shall act as such. The Company or any Affiliate of the Company may act as Paying Agent
(except for the purposes of Section 4.1 and Article 8).
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The Company hereby initially designates the Trustee as Paying Agent, Registrar and Securities
Custodian, and the office or agency of the Trustee in the Borough of Manhattan, The City of New
York (which shall initially be the office located at 101 Barclay Street 8W, New York, NY 10286)
as one such office or agency of the Company for each of the aforesaid purposes.
Section 2.4 Paying Agent to Hold Money in Trust. Prior to 11:00 a.m., New York City
time, on each due date of the principal of, interest or Additional Interest, if any, on any
Securities, the Company shall deposit with a Paying Agent a sum sufficient to pay such principal,
interest or Additional Interest, if any, so becoming due. A 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, interest or Additional Interest, if any, on the Securities, and shall notify the
Trustee of any default by the Company (or any other obligor on the Securities) in making any such
payment. If the Company or an Affiliate of the Company acts as Paying Agent, the Company or such
Affiliate shall, before 11:00 a.m., New York City time, on each due date of the principal of,
interest or Additional Interest, if any, on any Securities, segregate the money and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee, and the Trustee may at any time during the continuance of any Default, upon
written request to a Paying Agent, require such Paying Agent to pay forthwith to the Trustee all
sums so held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than the
Company) shall have no further liability for the money.
Section 2.5 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 Company shall furnish to the Trustee on
or 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 2.6 Transfer and Exchange.
(a) Subject to compliance with any applicable additional requirements contained in Section
2.12 hereof, when a Security is presented to a Registrar with a request to register a transfer
thereof or to exchange such Security for an equal principal amount of Securities of other
authorized denominations, the Registrar shall register the transfer or make the exchange as
requested; provided, however, that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by an assignment form and, if
applicable, a transfer certificate in the form(s) included in Exhibit A and Exhibit C, as
applicable, and in form satisfactory to the Registrar, duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers and exchanges, upon
surrender of any Security for registration of transfer or exchange at an office or agency
maintained pursuant to Section 2.3 hereof, the Company shall execute and the Trustee shall
authenticate Securities of a like aggregate principal amount at the Registrars request. Any
exchange or transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto, and provided, that this sentence shall not apply to any exchange pursuant to
Section 2.10, 2.12(a), 3.6, 3.11 or 9.5 hereof.
Neither the Company, any Registrar nor the Trustee shall be required to exchange or register a
transfer of any Securities or portions thereof in respect of which a Change of Control Purchase
Notice or a notice in connection with an Asset Sale Offer has been delivered and not withdrawn by
the Holder thereof (except, in the case of the purchase of a Security in part, the portion thereof
not to be purchased).
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Company, evidencing the same debt and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
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(b) Any Registrar appointed pursuant to Section 2.3 hereof shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.
(c) Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holders Security in
violation of any provision of this Indenture and/or applicable United States federal or state
securities law.
Section 2.7 Replacement Securities. If any mutilated Security is surrendered to the
Company, a Registrar or the Trustee, or the Company, a Registrar and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to
the Company, the applicable Registrar and the Trustee such security or indemnity as will be
required by them to save each of them harmless, then, in the absence of notice to the Company, such
Registrar or the Trustee that such Security has been acquired by a bona fide purchaser, the Company
shall execute, and upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or is about to be purchased by the Company pursuant to Article 3, the
Company in their discretion may, instead of issuing a new Security, pay or purchase such Security,
as the case may be.
Upon the issuance of any new Securities under this Section 2.7, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the reasonable fees and expenses of
the Trustee or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are (to the extent lawful) exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
Section 2.8 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 or surrendered for transfer or exchange and those described in this Section 2.8 as not
outstanding.
If a Security is replaced pursuant to Section 2.7 hereof, it ceases to be outstanding unless
the Company receives proof satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If a Paying Agent (other than the Company or an Affiliate of the Company) holds on a
Redemption Date, Change of Control Purchase Date or the Final Maturity Date money sufficient to pay
the principal of (including premium, if any), interest and Additional Interest, if any, on
Securities (or portions thereof) payable on that date, then on and after such Redemption Date,
Change of Control Purchase Date or the Final Maturity Date, as the case may be, such Securities (or
portions thereof, as the case may be) shall cease to be outstanding and interest and Additional
Interest, if any, on them shall cease to accrue.
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Subject to the restrictions contained in Section 2.9 hereof, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company hold the Security.
Section 2.9 Treasury Securities. In determining whether the Holders of the required
principal amount of Securities have concurred in any notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded, except that, for purposes of determining
whether the Trustee shall be protected in relying on any such notice, direction, waiver or consent,
only Securities which a Trust Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if
the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with
respect to the Securities and that the pledgee is not the either Company or any other obligor on
the Securities or any Affiliate of the Company or of such other obligor.
Section 2.10 Temporary Securities. Until Definitive Securities are ready for
delivery, the Company may prepare and execute, and, upon receipt of a Company Order, the Trustee
shall authenticate and deliver, temporary Securities. Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company with the consent of
the Trustee considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate and deliver definitive Securities in
exchange for temporary Securities.
Section 2.11 Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee or its
agent any Securities surrendered to them for transfer, exchange, payment or conversion. The
Trustee and no one else shall cancel, in accordance with its standard procedures, all Securities
surrendered for transfer, exchange, payment, conversion or cancellation and shall deliver the
canceled Securities to the Company. All Securities which are purchased or otherwise acquired by
the Company or any of its Subsidiaries prior to the Final Maturity Date may be delivered to the
Trustee for cancellation or resold. The Company may not hold or resell such Securities or issue
any new Securities to replace any Securities delivered for cancellation
Section 2.12 Legend; Additional Transfer and Exchange Requirements.
(a) If Securities are issued upon the transfer, exchange or replacement of Securities subject
to restrictions on transfer and bearing the legends set forth on the form of Securities attached
hereto as Exhibit A (collectively, the Legend), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall not be removed, as
the case may be, unless there is delivered to the Company such satisfactory evidence, which shall
include an opinion of counsel if requested by the Company, as may be reasonably required by the
Company, that neither the Legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of Rule 144 under the Securities Act or
that such Securities are not restricted within the meaning of Rule 144 under the Securities Act;
provided that no such evidence need be supplied in connection with the sale of such Security
pursuant to a registration statement that is effective at the time of such sale. Upon (i)
provision of satisfactory evidence if requested, or (ii) notification by the Company to the Trustee
and Registrar of the sale of such Security pursuant to a registration statement that is effective
at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate
and deliver a Security that does not bear the Legend. If the Legend is removed from the face of a
Security and the Security is subsequently held by an Affiliate of the Company, the Legend shall be
reinstated.
(b) A Global Security may not be transferred, in whole or in part, to any Person other than
the Depositary or a nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer of a Security that
is issued in
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exchange for a Global Security but is not itself a Global Security; provided further that in
no event shall a beneficial interest in a Regulation S Global Security be transferred to a U.S.
Person prior to the receipt by the Registrar of any certificates required pursuant to Regulation S,
as determined by the Company. No transfer of a Security to any Person shall be effective under
this Indenture or the Securities unless and until such Security has been registered in the name of
such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers
of a Global Security, in whole or in part, shall be made only in accordance with this section 2.12.
(c) Subject to the succeeding paragraph, every Security shall be subject to the restrictions
on transfer provided in the Legend. Whenever any Restricted Security is presented or surrendered
for registration of transfer or for exchange for a Security registered in a name other than that of
the Holder, such Security must be accompanied by a certificate in substantially the form set forth
in Exhibit A, dated the date of such surrender and signed by the Holder of such Security, as to
compliance with such restrictions on transfer. The Registrar shall not be required to accept for
such registration of transfer or exchange any Security not so accompanied by a properly completed
certificate.
(d) The restrictions imposed by the Legend upon the transferability of any Security shall
cease and terminate when such Security has been exchanged for an Exchange Security in the Exchange
Offer, sold pursuant to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision thereto) or, if
earlier, upon the expiration of the holding period applicable to sales thereof under Rule
144(d)(1)(ii) under the Securities Act (or any successor provision). Any Security as to which such
restrictions on transfer shall have expired in accordance with their terms or shall have terminated
may, upon a surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such restrictions on transfer have
terminated by reason of a transfer in compliance with Rule 144 or any successor provision, by, if
requested by the Company or the Registrar, an opinion of counsel reasonably acceptable to the
Company and addressed to the Company to the effect that the transfer of such Security has been made
in compliance with Rule 144 or such successor provision), be exchanged for a new Security, of like
tenor and aggregate principal amount, which shall not bear the restrictive Legend. The Company
shall inform the Trustee of the consummation of the Exchange Offer and the effective date of any
registration statement registering the Securities under the Securities Act. The Trustee shall not
be liable for any action taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.
(e) As used in this Section 2.12, the term transfer encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.
(f) The provisions of clauses (iii), (iv) and (v) below shall apply only to Global Securities:
(i) Notwithstanding any other provisions of this indenture or the Securities, a Global
Security shall not be exchanged in whole or in part for a Security registered in the name of
any Person other than the Depositary or one or more nominees thereof, provided that a Global
Security may be exchanged for Securities registered in the names of any person designated by
the Depositary in the event that (A) the Depositary (x) has notified the obligors that it is
unwilling or unable to continue as Depositary for such Global Security or (y) such
Depositary has ceased to be a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the obligors within 90 days after
receipt of such notice or the Company becomes aware of such failure of registration or (B)
an Event of Default has occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clause (A) above shall be so exchanged in whole and
not in part, and any Global Security exchanged pursuant to clause (B) may be exchanged in
whole or from time to time in part as directed by the
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Depositary. Any Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security; provided that any such Security so issued that is
registered in the name of a Person other than the Depositary or a nominee thereof shall not
be a Global Security.
(ii) Securities issued in exchange for a Global Security or any portion thereof shall
be issued in definitive, fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable legends provided for herein. Any
Global Security to be exchanged in whole shall be surrendered by the Depositary to the
Trustee, as Registrar. With regard to any Global Security to be exchanged in part, either
such Global Security shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the Depositary or an authorized
representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered Holder may grant
proxies and otherwise authorize any Person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
(iv) In the event of the occurrence of any of the events specified in clause (i) above,
the obligors will promptly make available to the Trustee a reasonable supply of Definitive
Securities in definitive, fully registered form, without interest coupons.
(v) Neither Agent members nor any other Persons on whose behalf Agent Members may act
shall have any rights under this Indenture with respect to any Global Security registered in
the name of the Depositary or any nominee thereof, or under any such Global Security, and
the Depositary or such nominee, as the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner and holder of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other Person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the rights of a holder of any
Security.
(vi) 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 Agent 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 as and when expressly required by, the terms or this
Indenture, and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
(g) Euroclear and Clearstream Procedures Applicable. The provisions of the Operating
Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the
equivalent procedures of Clearstream shall be applicable to transfers of beneficial interests in
Global Securities that are held by Participants through Euroclear or Clearstream.
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(h) Exchange Offer. Upon the consummation of the Exchange Offer in accordance with
the Registration Rights Agreement, the Company shall issue and, upon receipt of a Company Order,
and any documents required by Section 11.4 hereof, the Trustee shall authenticate (i) one or more
unrestricted Global Securities in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Restricted Global Securities accepted for exchange in the Exchange
Offer and (ii) Unrestricted Definitive Securities in an aggregate principal amount equal to the
principal amount of the applicable Restricted Definitive Securities accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Securities, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be canceled or reduced
accordingly, and the Trustee shall deliver to the Persons designated by the Holders of the
Definitive Securities so accepted Unrestricted Definitive Securities in the appropriate principal
amount.
Section 2.13 CUSIP and ISIN Numbers. The Company in issuing the Securities may use
one or more CUSIP and ISIN numbers (if then generally in use), and, if so, the Trustee shall
use CUSIP and ISIN numbers in notices of purchase as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a purchase and that reliance
may be placed only on the other identification numbers printed on the Securities, and any such
purchase shall not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP and ISIN numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem. The Company, at its option, may redeem the Securities in
accordance with the provisions of Section 3.7 hereof.
The Company may not redeem the Securities if it has failed to pay any interest or premium on
the Securities and such failure to pay is continuing.
If the Company elects to redeem the Securities, it shall notify the Trustee at least 45 days
prior to the Redemption Date (unless a shorter notice period shall be satisfactory to the Trustee)
of the Redemption Date, the aggregate principal amount of the Securities to be redeemed and the
Section of this Indenture pursuant to which the Securities are being redeemed.
Section 3.2 Selection of Securities to be Redeemed. If less than all the outstanding
Securities are to be redeemed, the Trustee shall select the Securities for redemption as follows:
(1) if the Securities are listed on any securities exchange, in compliance with the
requirements of the principal securities exchange on which the Securities are listed; or
(2) if the Securities are not listed on any securities exchange, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and appropriate.
In the event of partial redemption by lot, the particular Securities to be redeemed will be
selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Securities not previously called for
redemption.
The Trustee will promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the principal amount
thereof
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to be redeemed. Securities and portions of Securities selected will be in amounts of $2,000
or whole multiples of $1,000; except that if all of the Securities of a Holder are to be redeemed,
the entire outstanding amount of Securities held by such Holder, even if not a multiple of $1,000,
shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities called for
redemption.
Section 3.3 Notice of Redemption. At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail, or shall cause to be mailed, a notice of redemption by
first-class mail, postage prepaid, to the Trustee and to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
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the aggregate principal amount of the Securities to be redeemed; |
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the Redemption Date (which shall be a Business Day); |
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the redemption price; |
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the name and address of the Paying Agent; |
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that Securities called for redemption must be surrendered to the Paying Agent
to collect the redemption price; |
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if fewer than all the outstanding Securities are to be redeemed, the
certificate numbers, if any, and principal amounts of the particular Securities to
be redeemed; |
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that, unless the Company defaults in the deposit of the redemption price,
interest on Securities called for redemption will cease to accrue on and after the
Redemption Date; |
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the Section of this Indenture pursuant to which the Securities are being
redeemed; and |
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the CUSIP numbers of the Securities. |
At the Companys request, the Trustee shall give the notice of redemption in the Companys name and
at the Companys expense, provided that the Company makes such request at least three Business Days
prior to the date by which such notice of redemption must be given to Holders in accordance with
this Section 3.3. Concurrently with the mailing of any such notice of redemption, the Company
shall issue a press release announcing such redemption, the form and content of which shall be
determined by the Company. A notice of redemption may not be conditional. Redemption notices may
be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a
defeasance of the Securities pursuant to Sections 8.3 or 8.4 or a satisfaction and discharge of
this Indenture pursuant to Section 8.1.
Section 3.4 Effect of Notice of Redemption. Once notice of redemption is given,
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. If the Redemption Date falls during a period
starting after the close of business on an interest payment record date and ending on the opening
of business on the first Business Day after the next interest payment date, or if this interest
payment date is not a Business Day, the second Business Day after the interest payment date; then
the interest payment will be payable to the Holders who present the Securities for redemption.
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On and after the Redemption Date, unless the Company defaults in the deposit of the redemption
price, interest will cease to accrue on the Securities or any portion of the Securities called for
redemption, and all other rights of the Holder will terminate other than the right to receive the
redemption price, without interest from the Redemption Date, on surrender of the Securities.
Section 3.5 Deposit of Redemption Price. Prior to 11:00 a.m. (New York City time) on
the Redemption Date, the Company shall deposit with the Paying Agent (or the Trustee) money
sufficient to pay the redemption price on all Securities to be redeemed on that date.
Section 3.6 Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge, a new Security in an authorized denomination equal in principal
amount to, and in exchange for, the unredeemed portion of the Security surrendered.
Section 3.7 Optional Redemption.
(a) At any time prior to March 15, 2013, the Company may, on any one or more occasions redeem,
in whole or in part, up to 35% of the aggregate principal amount of Securities, including
Additional Securities, if any, issued under this Indenture at a redemption price of 107.625% of the
principal amount of the Securities redeemed, plus accrued and unpaid interest and Additional
Interest, if any, on the Securities redeemed to the applicable redemption date, with the net cash
proceeds of one or more Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Securities, including Additional
Securities, if any, issued under this Indenture remains outstanding immediately after, the
occurrence of such redemption, excluding Securities held by the Company and its
Subsidiaries; and
(2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering.
(b) On or after March 15, 2015, the Company may, at its option, redeem all or a part of the
Securities upon not less than 30 nor more than 60 days notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and unpaid interest and Additional
Interest, if any, on the Securities redeemed, to the applicable redemption date, if redeemed during
the twelve-month period beginning on March 15 of the years indicated below:
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Year |
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Percentage |
2015 |
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103.813 |
% |
2016 |
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102.542 |
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2017 |
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101.271 |
% |
2018 and thereafter |
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100.000 |
% |
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(c) |
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In addition, at any time prior to March 15, 2015, the Company may redeem the Securities,
in whole or in part, at a redemption price equal to the principal amount of the Securities plus the
Applicable Premium plus accrued and unpaid interest, if any, to the date of redemption. |
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Any redemption pursuant to this Section 3.7 shall be made pursuant to the provisions of
Sections 3.1 through 3.6 hereof. |
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(e) In connection with any Redemption under this Section 3.7, the Company shall deliver to the
Trustee an Officers Certificate to the effect that all conditions precedent in the Indenture to
the Redemption have been complied with.
Section 3.8 Purchase of Securities at Option of the Holder Upon Change of Control.
(a) If at any time that Securities remain outstanding there shall occur a Change of Control,
Securities shall be purchased by the Company at the option of the Holders, as of the Change of
Control Purchase Date, at a purchase price equal to 101% of the principal amount of the Securities,
together with accrued and unpaid interest, including interest on any unpaid overdue interest, and
Additional Interest, if any, to, but excluding, the Change of Control Purchase Date (the Change of
Control Purchase Price), subject to satisfaction by or on behalf of any Holder of the requirements
set forth in subsection (c) of this Section 3.8.
(b) Within 10 days after the occurrence of a Change of Control, the Company shall mail a
written notice (Company Notice) of the Change of Control to the Trustee and to each Holder (and
to beneficial owners as required by applicable law) pursuant to which the Company shall make an
offer (a Change of Control Offer) to each Holder to repurchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of each Holders Securities at the Change of
Control Purchase Price. The notice shall include the form of a Change of Control Purchase Notice
to be completed by the Holder, shall describe the transaction or transactions that constitute the
Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 3.8 and
that all Securities tendered will be accepted for payment;
(ii) the date by which the Change of Control Purchase Notice pursuant to this Section
3.8 must be given;
(iii) the purchase date, which date shall be no earlier than 30 days and no later than
60 days after the date the Company Notice is mailed (the Change of Control Purchase Date);
(iv) the Change of Control Purchase Price;
(v) the Holders right to require the Company to purchase the Securities;
(vi) the name and address of the Paying Agent;
(vii) that, unless the Company defaults in making such payment, any Security accepted
for payment pursuant to the Change of Control Offer will cease to accrue interest after the
Change of Control Purchase Date;
(viii) the procedures that the Holder must follow to exercise rights under this Section
3.8; and
(ix) the procedures for withdrawing a Change of Control Purchase Notice, including a
form of notice of withdrawal.
If any of the Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the procedures of the Depositary applicable to
the repurchase of Global Securities.
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(c) A Holder may exercise its rights specified in subsection (a) of this Section 3.8 upon
delivery of a written notice (which shall be in substantially the form included in Exhibit A
hereto, as applicable, and which may be delivered by letter, overnight courier, hand delivery,
facsimile transmission or in any other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the Depositarys customary
procedures) of the exercise of such rights (a Change of Control Purchase Notice) to any Paying
Agent at any time prior to the close of business on the Business Day next preceding the Change of
Control Purchase Date.
The delivery of such Security to any Paying Agent (together with all necessary endorsements)
at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Change
of Control Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this Section 3.8, a portion of
a Security if the principal amount of such portion is $2,000 or an integral multiple of $1,000 in
excess thereof. Provisions of the Indenture that apply to the purchase of all of a Security
pursuant to Sections 3.8 through 3.13 also apply to the purchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent the
Change of Control Purchase Notice contemplated by this subsection (c) shall have the right to
withdraw such Change of Control Purchase Notice in whole or in a portion thereof that is a
principal amount of $2,000 or an integral multiple of $1,000 in excess thereof at any time prior to
the close of business on the Business Day next preceding the Change of Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 3.9
hereof.
A Paying Agent shall promptly notify the Company of the receipt by it of any Change of Control
Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global Securities, any Change
of Control Purchase Notice may be delivered or withdrawn and such Securities may be surrendered or
delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
If the Change of Control Purchase Date falls after an interest payment record date and on or
before the date that is one Business Day after the next interest payment date, then the interest
payment will be payable to the Holder who presents a Security for purchase.
(d) The Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control offer in the manner, at the times and
otherwise in compliance with the requirements applicable to a Change of Control Offer made by the
obligors set forth in subsection (b) of this Section 3.8 and purchases all Securities properly
tendered and not withdrawn under the Change of Control Offer, (2) notice of redemption has been
given pursuant to Section 3.1 or 3.7 hereof, unless and until there is a default in payment of the
applicable redemption price, or (3) after giving effect to such Change of Control, (i) no Default
or Event of Default has occurred and is continuing, (ii) the Change of Control transaction has been
approved by the Board of Directors of the Company, and (iii) the securities have received an
Investment Grade Rating. In addition, a Change of Control Offer may be made in advance of a Change
of Control, conditional upon such Change of Control, if a definitive agreement is in place for the
Change of Control at the time of launching the Change of Control Offer.
(e) The Company will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
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Section 3.9 Effect of Change of Control Purchase Notice. Upon receipt by any Paying
Agent of the Change of Control Purchase Notice specified in Section 3.8(c) hereof, the Holder of
the Security in respect of which such change of Control Purchase Notice was given shall (unless
such Change of Control Purchase Notice is withdrawn as specified below) thereafter be entitled to
receive the Change of Control Purchase Price with respect to such Security. Such Change of Control
Purchase Price shall be paid to such Holder promptly following the later of (a) the Change of
Control Purchase Date with respect to such Security (provided the conditions in Section 3.8(c)
hereof have been satisfied) and (b) the time of delivery of such Security to a Paying Agent by the
Holder thereof in the manner required by Section 3.8(c) hereof.
A Change of Control Purchase Notice may be withdrawn by means of a written notice (which may
be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered electronically or by other
means in accordance with the Depositarys customary procedures) of withdrawal delivered by the
Holder to a Paying Agent at any time prior to the close of business on the Business Day immediately
preceding the Change of Control Purchase Date, specifying the principal amount of the Security or
portion thereof (which must be a principal amount of $2,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being submitted.
Section 3.10 Deposit of Change of Control Purchase Price. On or before 11:00 a.m. New
York City time on the Change of Control Purchase Date, the Company shall deposit with the Trustee
or with a Paying Agent (other than the Company or an Affiliate of the Company) an amount of money
(in immediately available funds if deposited on such Change of Control Purchase Date) sufficient to
pay the aggregate Change of Control Purchase Price of all the Securities or portions thereof that
are to be purchased as of such Change of Control Purchase Date. The manner in which the deposit
required by this Section 3.10 is made by the Company shall be at the option of the Company,
provided that such deposit shall be made in a manner such that the Trustee or a Paying Agent shall
have immediately available funds on the Change of Control Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money sufficient to pay the
Change of Control Purchase Price of any Security for which a Change of Control Purchase Notice has
been tendered and not withdrawn in accordance with this Indenture then, on the Change of Control
Purchase Date, interest will cease to accrue on such Securities or any portion of the Securities as
to which a Change of Control Purchase Notice has been tendered and not withdrawn in accordance with
this Indenture and all other rights of the Holder will terminate other than the right to receive
the Change of Control Purchase Price, without interest from the Change of Control Purchase Date, on
surrender of the Securities.
Section 3.11 Securities Purchased in Part. Any Security that is to be purchased only
in part shall be surrendered at the office of a Paying Agent, and promptly after the Change of
Control Purchase Date the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge, a new Security or Securities, of such
authorized denomination or denominations as may be requested by such Holder, in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.
Section 3.12 Compliance With Securities Laws Upon Purchase of Securities. In
connection with any offer to purchase or purchase of Securities under Section 3.8 hereof, the
Company shall (a) comply with Rule 14e-1 (or any successor to such Rule), if applicable, under the
Exchange Act, and (b) otherwise comply with all federal and state securities laws in connection
with such offer to purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 3.8 through 3.11 hereof to be exercised in
the time and in the manner specified therein. To the extent that the provisions of any securities
laws or regulations conflict with the Change of Control
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provisions of this Article 3, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this Article 3 by virtue
of such conflict.
Section 3.13 Repayment to the Company. To the extent that the aggregate amount of
cash deposited by the Company pursuant to Section 3.10 hereof exceeds the aggregate Change of
Control Purchase Price (including interest and Additional Interest, if any, thereon) of the
Securities or portions thereof that the Company is obligated to purchase, then promptly after the
Change of Control Purchase Date, and upon request, the Trustee or a Paying Agent, as the case may
be, shall return any such excess cash to the Company.
Section 3.14 Offer to Purchase by Application of Excess Proceeds. In the event that,
pursuant to Section 4.14 hereof, the Company is required to commence an offer to all Holders to
purchase Securities (Asset Sale Offer), it shall follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders of Securities and all holders of other
indebtedness that is pari passu with the Securities containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of
assets (Parity Indebtedness). The Asset Sale Offer shall remain open for a period of at least 20
Business Days following its commencement and not more than 30 Business Days, except to the extent
that a longer period is required by applicable law (the Offer Period). No later than three
Business Days after the termination of the Offer Period (the Purchase Date), the Company shall
apply a portion of the Excess Proceeds as calculated pursuant to the Section 4.14 hereof (the
"Offer Amount) to the purchase of Securities and such other Parity Indebtedness (on a pro rata
basis, if applicable) or, if less than the Offer Amount has been tendered, all Securities and other
Parity Indebtedness tendered in response to the Asset Sale Offer. Payment for any Securities so
purchased shall be made in the same manner as interest payments are made.
Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a
notice to the Trustee and each of the Holders. The notice will contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the Asset Sale Offer.
The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 3.14 and Section
4.14 hereof and the length of time the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Security not tendered or accepted for payment will continue to accrue
interest and Additional Interest, if any;
(4) that, unless the Company defaults in making such payment, any Security accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest and Additional
Interest, if any, after the Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to an Asset Sale Offer
may elect to have Securities purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Security purchased pursuant to any Asset Sale Offer
shall be required to surrender the Security, with the form entitled Option of Holder to
Elect Purchase on the reverse of the Security completed, or transfer by book-entry
transfer, to
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the Company, a Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase Date;
(7) that Holders shall be entitled to withdraw their election if the Company or the
Paying Agent, as the case may be, receives, not later than the expiration of the Offer
Period, a facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(8) that, if the aggregate principal amount of Securities and other Parity Indebtedness
surrendered in connection with the Asset Sale offer exceeds the Offer Amount, the Company
shall select the Securities and other Parity Indebtedness to be purchased on a pro rata
basis based on the principal amount of Securities and such other Parity Indebtedness
surrendered (with such adjustments as may be deemed appropriate by the Company so that only
Securities in denominations of $1,000, or integral multiples thereof, will be purchased);
and
(9) that Holders whose Securities were purchased only in part will be issued new
Securities equal in principal amount to the unpurchased portion of the Securities
surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment,
on a pro rata basis to the extent necessary, the Offer Amount of Securities or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Securities tendered, and shall deliver to the Trustee an Officers Certificate stating that such
Securities or portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.14. The Company, the Depositary or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver
to each tendering Holder an amount equal to the purchase price of the Securities tendered by such
Holder and accepted by the Company for purchase, and the Company shall promptly issue a new
Security, and the Trustee, upon written request from the Company, shall authenticate and mail or
deliver such new Security to such Holder, in a principal amount equal to any unpurchased portion of
the Security surrendered. Any Security not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on or as soon as practicable after the Purchase Date.
Other than as specifically provided in this Section 3.14, any purchase pursuant to this
Section 3.14 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 3.15 Tax Redemption.
(a) If as a result of:
(i) any amendment to, or change in, the laws (or regulations or rulings promulgated
thereunder) of any Relevant Taxing Jurisdiction which is announced and becomes effective
after the Successor Date (or, where a jurisdiction in question does not become a Relevant
Taxing Jurisdiction until a later date, such later date); or
(ii) any amendment to, or change in, the official application or official
interpretation of the laws, regulations or rulings of any Relevant Taxing Jurisdiction which
is announced and becomes effective after the Successor Date (or, where a jurisdiction in
question does not become a Relevant Taxing Jurisdiction until a later date, such later
date),
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a Foreign Successor Issuer would be obligated to pay, on the next date for any payment and as a
result of that amendment or change, Additional Amounts or indemnification payments pursuant to
Section 4.22 hereof with respect to the Relevant Taxing Jurisdiction, which such Foreign Successor
Issuer reasonably determines it cannot avoid by the use of reasonable measures available to it,
then such Foreign Successor Issuer may redeem all, but not less than all, of the Securities, at any
time thereafter, upon not less than 30 nor more than 60 days notice to the Trustee and to each
Holder of Securities to be redeemed, at a redemption price of 100% of their principal amount (or,
if such payments result from a Permitted Merger that constitutes a Change of Control, 101% of their
principal amount), plus accrued and unpaid interest, if any, to the redemption date. Prior to the
giving of any notice of redemption described in this paragraph, a Foreign Successor Issuer will
deliver to the Trustee:
(i) an Officers Certificate of such Foreign Successor Issuer stating that the
obligation to pay the Additional Amounts or indemnification payments cannot be avoided by
such Foreign Successor Issuers taking reasonable measures available to it; and
(ii) a written opinion of independent legal counsel to such Foreign Successor Issuer of
recognized standing to the effect that such Foreign Successor Issuer has or will become
obligated to pay such Additional Amounts or indemnification payments as a result of a
change, amendment, official interpretation or application described above.
(b) A Foreign Successor Issuer will publish a notice of any optional redemption of the
Securities described above in accordance with Section 3.3, 3.4 and 3.5 hereof. No such notice of
redemption may be given more than 60 days before the Foreign Successor Issuer first becomes liable
to pay any Additional Amount or other payments under Section 4.22.
ARTICLE 4
COVENANTS
Section 4.1 Payment of Securities. The Company shall promptly make all payments in
respect of the Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal, interest or Additional Interest, if any, shall be
considered paid on the date it is due if the Paying Agent (other than the Company) holds by 11:00
a.m., New York City time, on that date money, deposited by the Company or an Affiliate thereof,
sufficient to pay the installment. Except in the case of a redemption, a Change of Control Offer
or an Asset Sale Offer, accrued and unpaid interest or Additional Interest, if any, on any Security
that is payable, and is punctually paid or duly provided for, on any interest payment date shall be
paid to the Person in whose name that Security is registered at the close of business on the record
date for such interest or Additional Interest, if any, at the office or agency of the Company
maintained for such purpose. The Company shall, (in immediately available funds) to the fullest
extent permitted by law, pay interest on overdue principal (including premium, if any) and overdue
installments of interest from the original due date to the date paid, at the rate applicable to the
Security plus 1% per annum, which interest shall be payable on demand. Additional Interest, if
any, shall accrue at the rates provided for in the Registration Rights Agreement and shall be paid
at the same time and in the same manner as regular interest. In no event shall the Trustee be
charged with knowledge of the content of the Registration Rights Agreement.
The Company will make payments in respect of the notes represented by the Global Securities
(including principal, premium, if any, interest and Additional Interest, if any) by wire transfer
of immediately available funds to the accounts specified by the Holder of the Global Security. The
Company will make all payments of principal, interest and premium and Additional Interest, if any,
with respect to Definitive Securities by wire transfer of immediately available funds to the
accounts specified
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by the Holders of the Definitive Securities, in the case of a Holder holding an aggregate
principal amount of notes of $1,000,000 or more, or, if no such account is specified or in the case
of a Holder holding an aggregate principal amount of notes of less than $1,000,000, by mailing a
check to each such Holders registered address. All payments shall be made in immediately
available funds in such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payments to any Holder holding an
aggregate principal amount of Securities in excess of $1,000,000 shall be made by wire transfer in
immediately available funds to an account maintained by such Holder in the United States, if such
Holder has provided wire transfer instructions to the Company at least 10 Business Days prior to
the payment date. Any wire transfer instructions received by the Trustee will remain in effect
until revoked by the Holder.
Section 4.2 Maintenance of Office or Agency.
(a) The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co
registrar) where Securities may be surrendered for payment, registration of transfer or for
exchange and where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more other offices or agencies
where the Securities may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York for such purposes. The Company shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the office of the Trustee set forth in Section 2.3 hereof as
one such office or agency of the Company.
Section 4.3 Reports.
(a) Whether or not required by the SECs rules and regulations, so long as any Securities are
outstanding, the Company shall furnish (to the extent not publicly available on the SECs IDEA
(f/k/a EDGAR) system) to the Trustee and the Holders of Securities and post on the Companys
website (in a format that is accessible to Holders of Securities as well as prospective Holders of
Securities), within the time periods specified in the SECs rules and regulations:
(i) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were required to file such reports; and
(ii) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.
All such reports shall be prepared in all material respects in accordance with all of the
rules and regulations applicable to such reports (other than consolidating financial information
required by Rule 3-10 of Regulation S-X or any comparable provision so long as the Company complies
with Section 4.3(d)). Each annual report on Form 10-K shall include a report on the Companys
consolidated financial
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statements by the Companys certified independent accountants. In addition, the Company shall
file a copy of each of the reports referred to in clauses (i) and (ii) above with the SEC for
public availability within the time periods specified in the rules and regulations applicable to
such reports (unless the SEC will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. For the avoidance of doubt, the
Company will be required to provide the information described above regardless of whether it
continues to file reports with the SEC and regardless of whether it becomes a non-U.S. entity.
(b) If, at any time, the Company is no longer subject to the periodic reporting requirements
of the Exchange Act for any reason, the Company shall nevertheless continue filing with the SEC and
posting on its website the reports specified in Section 4.3(a) hereof with the SEC within the time
periods specified above unless the SEC will not accept such a filing. The Company agrees that it
shall not take any action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept the Companys filings for any reason, the
Company shall post the reports referred to in Section 4.3(a) hereof on its website (and deliver
them to the Trustee) within the time periods that would apply if the Company were required to file
those reports with the SEC.
(c) The Company further agrees that, for so long as any Securities remain outstanding, at any
time it is not required to file the reports required by Section 4.3(a) or (b) hereof with the SEC,
it shall furnish to the Holders and to the Trustee and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(d) The quarterly and annual financial information required by Sections 4.3(a), (b) and (c)
hereof shall include a reasonably detailed presentation, either on the face of the financial
statements, in the footnotes of the financial statements or in Managements Discussion and Analysis
of Financial Condition and Results of Operations that discloses the total assets, liabilities,
revenues and income from operations of Subsidiaries of the Company that do not guarantee the
Securities. The Trustee shall not be responsible for determining whether clause 4.3(d) has been
satisfied, nor shall it have any liability in connection therewith.
(e) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
Section 4.4 Compliance Certificates. The Company shall deliver to the Trustee, within
90 days after the end of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2010), an Officers Certificate as to the signers knowledge of the Companys
compliance with all conditions and covenants on their part contained in this Indenture and stating
whether or not the signer knows of any Default or Event of Default. If such signer knows of such a
Default or Event of Default, the Officers Certificate shall describe the Default or Event of
Default and the efforts to remedy the same. For the purposes of this Section 4.4, compliance shall
be determined without regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
Section 4.5 Further Instruments and Acts. Upon request of the Trustee, the Company
will execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.
Section 4.6 Maintenance of Corporate Existence. Subject to Article 5 hereof, the
Company will do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate
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existence and the corporate existence of each Restricted Subsidiary; provided, however, that
the Company shall not be required to preserve the corporate existence of any Restricted Subsidiary
if (a) the Board of Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and the Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders
of the Securities or (b) if a Subsidiary is to be dissolved, such Subsidiary has no assets.
Section 4.7 Changes in Covenants when Securities Rated Investment Grade. Beginning on
the date that:
(a) the Securities have an Investment Grade Rating; and
(b) no Default or Event of Default shall have occurred and be continuing,
and ending on the date (the Reversion Date) that either Rating Agency ceases to have Investment
Grade Ratings on the Securities (such period of time, the Suspension Period), the provisions of
Sections 4.8, 4.9, 4.12, 4.13 and 4.14 hereof and clause (iv) of Section 5.1(a) hereof will no
longer be applicable to the Securities.
During a Suspension Period, the Companys Board of Directors may not designate any of our
Subsidiaries as Unrestricted Subsidiaries.
On the Reversion Date, all Indebtedness incurred during the Suspension Period will be
classified to have been incurred pursuant to and permitted under Section 4.9(a) or one of the
clauses set forth in the definition of Permitted Debt (to the extent such Indebtedness would be
permitted to be incurred thereunder as of the Reversion Date and after giving effect to
Indebtedness incurred prior to the Suspension Period and outstanding on the Reversion Date). To
the extent any Indebtedness would not be permitted to be incurred pursuant to Section 4.9(a) or any
of the clauses set forth in the definition of Permitted Debt, such Indebtedness will be deemed to
have been outstanding on the Issue Date, so that it is classified as Permitted Debt under clause
(2) of the definition of Permitted Debt and permitted to be refinanced under clause (5) of the
definition of Permitted Debt.
Notwithstanding the fact that covenants suspended during a Suspension Period may be
reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure
to comply with the covenants during the Suspension Period or at the time the covenants are
reinstated. Furthermore, without causing a Default or Event of Default, the Company and the
Restricted Subsidiaries may honor any contractual commitments to take actions in the future after
any date on which the Securities no longer have an Investment Grade Rating from both of the Rating
Agencies as long as such contractual commitments were entered into during a Suspension Period and
not in anticipation of the Securities no longer having an Investment Grade Rating from both of the
Rating Agencies.
The Trustee shall not be charged with any knowledge of nor be responsible for determining
whether any Reversion Date or Suspension Period is in effect.
Section 4.8 Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(i) declare or pay any dividend or make any other payment or distribution on account of
the Companys or any of its Restricted Subsidiaries Equity Interests (including,
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without limitation, any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect
holders of the Companys or any of its Restricted Subsidiaries Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the
Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company, except for any
purchase or redemption of the Companys common Equity Interests with the net proceeds of the
Securities issued on the Issue Date and within twelve months of the Issue Date;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Securities, except
(a) payments of interest thereon, (b) payments of principal at the Stated Maturity thereof
and (c) any payment on or with respect to the 3% Convertible Subordinated Notes due 2010 or
the 4% Convertible Subordinated Notes due 2013 made, in the case of clause (c), with the net
proceeds of the Companys 8.375% Senior Notes due 2016 issued on June 9, 2009 and made
through June 9, 2010; or
(iv) make any Restricted Investment
(all such payments and other actions set forth in these clauses (i) through (iv) above being
collectively referred to as Restricted Payments), unless, at the time of and after giving effect
to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;
(2) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.9(a)
hereof and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after June 9, 2009 (excluding
Restricted Payments permitted by clauses (ii) through (v), (viii) and (ix) of Section
4.8(b)), is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from April 1, 2009 to the end of the Companys most recently
ended fiscal quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds received by the Company since June
9, 2009 as a contribution to its common equity capital or from the issue or sale of
Equity Interests of the Company (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or
exchanged for such Equity
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Interests (other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company), plus
(C) to the extent that any Restricted Investment that was made after June 9,
2009 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i)
the cash return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) or (ii) the initial amount of such Restricted Investment,
plus
(D) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary after June 9, 2009, the lesser of (i) the
Fair Market Value of the Companys Investment in such Subsidiary as of the date of
such redesignation or (ii) such Fair Market Value as of the date on which such
Subsidiary was originally designated as an Unrestricted Subsidiary.
(b) So long as no Default or Event of Default has occurred and is continuing or would be
caused thereby, the preceding provisions shall not prohibit:
(i) the payment of any dividend within 60 days after the date of declaration of the
dividend, if at the date of declaration the dividend payment would have complied with the
provisions of this Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or of any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of the substantially concurrent sale (other
than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company (other
than Disqualified Stock) or other subordinated Indebtedness incurred under subsection (a) of
Section 4.9; provided that (i) the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement, defeasance or other acquisition will be
excluded from clause (3)(B) of Section 4.8(a) hereof and (ii) any such subordinated
Indebtedness shall be Permitted Refinancing Indebtedness;
(iii) the defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted Subsidiary of the Company to the
holders of its Equity Interests on a pro rata basis;
(v) the repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company held by any
employee or former employee of the Company or any of its Restricted Subsidiaries pursuant to
any equity subscription agreement, stock option agreement or similar agreement; provided,
however, that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed an aggregate of $5.0 million in any fiscal year;
(vi) payments to holders of Equity Interests (or to the holders of Indebtedness that is
convertible into or exchangeable for Equity Interests upon such conversion or exchange) in
lieu of the issuance of fractional shares; provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments;
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(vii) the redemption, repurchase, retirement, defeasance or other acquisition of
subordinated Indebtedness of the Company, so long as, at the time of any such redemption,
repurchase, retirement, defeasance or acquisition, the Total Leverage Ratio is less than
1.25x, in an aggregate amount not to exceed $50.0 million since the date of the indenture;
(viii) cash settlement of the aggregate principal amount of the Companys 3%
Convertible Subordinated Notes due 2010 or the 4% Convertible Subordinated Notes due 2013
within 6 months of the Stated Maturity thereof upon conversion by the holders thereof;
(ix) a one-time dividend, distribution or other payment on account of Equity Interests
of the Company or a one-time repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company (or a combination thereof), in connection with
the consummation of a Permitted Merger and the achievement of a desired pro forma equity
ownership, so long as the Permitted Merger Conditions are satisfied; and
(x) other Restricted Payments in an aggregate amount not to exceed $100.0 million since
the date of this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value
(determined, for purposes of this covenant, by the Company or, in the case of any asset(s) valued
in excess of $20.0 million, by the Board of Directors of the Company, in each case evidenced by an
Officers Certificate delivered to the Trustee) on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The Board of Directors
determination shall be based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the Fair Market Value exceeds $50.0 million.
Section 4.9 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise (collectively, Incur), with respect to any
Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and
shall not permit any of its Restricted Subsidiaries to issue any Disqualified Stock or preferred
stock; provided, however, that the Company or any Restricted Subsidiary may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock if the Fixed Charge Coverage Ratio for the
Companys most recently ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.0 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or the Disqualified Stock had been issued, as the case may be, at
the beginning of such four-quarter period.
(b) Subsection (a) of this Section 4.9 shall not prohibit the incurrence of any of the
following items of Indebtedness (collectively, Permitted Debt):
(i) the incurrence by the Company of Indebtedness under Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (i) not to exceed
$150.0 million plus an aggregate principal amount of Indebtedness secured by a Lien
outstanding at any time such that, on a pro forma basis (including a pro forma application
of the proceeds therefrom), the Secured Leverage Ratio would not exceed 2.00 to 1.00;
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(ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;
(iii) the incurrence by the Company of Indebtedness represented by the Securities
issued on the Issue Date (including the Guarantees) and the related Exchange Securities to
be issued pursuant to the Registration Rights Agreement and Guarantees thereof, if any, by
Subsidiary Guarantors;
(iv) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property, plant or equipment used
in the business of the Company or such Restricted Subsidiary, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (iv), not to exceed the greater of
(x) $50.0 million and (y) 5% of Consolidated Total Assets at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under Section 4.9(a) hereof or clause (ii), (iii), (iv),
(xi) or (xii) of this Section 4.9(b);
(vi) the incurrence by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided, however, that:
(A) if the Company or a Subsidiary Guarantor is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Securities; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted Subsidiary
of the Company shall be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that
was not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations that are incurred in the ordinary course of business and not for speculative
purposes;
(viii) the Guarantee by the Company or any Subsidiary Guarantor of Indebtedness of the
Company or a Subsidiary Guarantor of the Company that was permitted to be incurred under
this Section 4.9 (other than the Subsidiary Guarantees); provided that if the Indebtedness
being guaranteed is subordinated to or pari passu with the Securities, then the Guarantee
shall be subordinated to the same extent as the Indebtedness guaranteed;
(ix) the accrual of interest, the accretion or amortization of original issue discount,
the payment of interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Stock in the form of additional
shares of the
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same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness
or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such
case, that the amount thereof is included in Fixed Charges of the Company as accrued;
(x) Obligations in respect of performance and surety bonds and completion guarantees
provided by the Company or any Restricted Subsidiary in an aggregate principal amount at any
time outstanding not to exceed $50.0 million;
(xi) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired
Debt in an aggregate principal amount at any time outstanding not to exceed $50.0 million;
(xii) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this clause (xii), not to exceed the
greater of (x) $100.0 million and (y) 10% of Consolidated Total Assets; and
(xiii) the Guarantee by Domestic Subsidiaries of the Company of Indebtedness of the
Company or the Subsidiary Guarantors permitted to be incurred under another provision of
this Section 4.9.
(c) The Company shall not, and shall not permit any Subsidiary Guarantor to, incur any
Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to
any other Indebtedness of the Company or the Subsidiary Guarantors unless such Indebtedness is also
contractually subordinated in right of payment to the Securities on substantially identical terms;
provided, however, that no Indebtedness of the Company or the Subsidiary Guarantors shall be deemed
to be contractually subordinated in right of payment to any other Indebtedness of the Company or
any Subsidiary Guarantor solely by virtue of being unsecured.
(d) For purposes of determining compliance with this Section 4.9, in the event that an item of
proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt
described in clauses (i) through (xiii) of Section 4.9(b) hereof, or is entitled to be incurred
pursuant to subsection (a) of this Section 4.9, the Company shall be permitted to classify such
item of Indebtedness on the date of its incurrence, or later reclassify from time to time all or a
portion of such item of Indebtedness, in any manner that complies with this Section 4.9.
Indebtedness permitted by this Section 4.9 need not be permitted solely by reference to one clause
permitting such Indebtedness but may be permitted in part by one such clause and in part by one or
more other clauses of this Section 4.9 permitting such Indebtedness. Indebtedness under Credit
Facilities outstanding on the date on which Securities are first issued and authenticated under
this Indenture will be deemed to have been incurred on such date in reliance on the exception
provided by clause (i) of Section 4.9(b) hereof.
Section 4.10
[Reserved].
Section 4.11
Liens.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind on any asset
now owned or hereafter acquired, except Permitted Liens, unless contemporaneously therewith:
(i) in the case of any Lien securing an obligation that ranks pari passu with the
Securities or a Subsidiary Guarantee, effective provision is made to secure the Securities
or such
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Subsidiary Guarantee, as the case may be, at least equally and ratably with or prior to
such obligation with a Lien on the same assets of the Issuer or such Restricted Subsidiary,
as the case may be; and
(ii) in the case of any Lien securing an obligation that is subordinated in right of
payment to the Securities or a Subsidiary Guarantee, effective provision is made to secure
the Securities or such Subsidiary Guarantee, as the case may be, with a Lien on the same
assets of the Issuer or such Restricted Subsidiary, as the case may be, that is prior to the
Lien securing such subordinated obligation.
Section 4.12 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any indebtedness owed to the Company
or any of its Restricted Subsidiaries;
(ii) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(iii) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
(b) The restrictions set forth in Section 4.12(a) hereof shall not apply to encumbrances or
restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness as in effect on the date of this
Indenture and any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of those agreements, provided that the amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in those agreements on the date of this
Indenture;
(ii) this Indenture, the Securities and the Subsidiary Guarantees;
(iii) any encumbrance or restriction pursuant to Credit Facilities incurred under
clause (i) of Section 4.9(b) hereof;
(iv) applicable law, rule, regulation or order, approval, license, permit or similar
restriction, including under contracts with foreign governments or agencies thereof entered
into in the ordinary course of business;
(v) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred, or such Capital Stock was issued, in
connection with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the
Person, or the
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property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted to be incurred under Section 4.9 hereof;
(vi) customary non-assignment provisions in leases, contracts and licenses entered into
in the ordinary course of business and consistent with past practices;
(vii) purchase money obligations for property acquired in the ordinary course of
business that impose restrictions on that property of the nature described in clause (iii)
of Section 4.12(a) hereof;
(viii) any agreement for the sale or other disposition of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(ix) Permitted Refinancing Indebtedness, provided that the restrictions contained in
the agreements governing such Permitted Refinancing Indebtedness are no more restrictive,
taken as a whole, than those contained in the agreements governing the Indebtedness being
refinanced;
(x) Permitted Liens securing Indebtedness that limit the right of the debtor to dispose
of the assets subject to such Liens;
(xi) customary provisions with respect to the disposition or distribution of assets or
property in joint venture agreements, assets sale agreements, stock sale agreements and
other similar agreements entered into in the ordinary course of business; and
(xii) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business.
Section 4.13 Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make
any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each, an Affiliate Transaction), unless:
(i) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee:
(A) respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $15.0 million, a
resolution of the Board of Directors of the Company set forth in an Officers
Certificate certifying that such Affiliate Transaction complies with this Section
4.13(a) and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Company; provided, that a
series of related Affiliate Transactions that provides for payments of no more than
$2.0 million in any calendar year shall be exempted; and
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(B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $25.0 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm of national standing; provided, that a series
of related Affiliate Transactions that provides for payments of no more than $5.0
million in any calendar year shall be exempted.
(b) The following items shall not be deemed to be Affiliate Transactions and, therefore, will
not be subject to the provisions of Section 4.13(a) hereof:
(i) any employment agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past practice of the
Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its Restricted Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the Company solely because the
Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or
controls, such Person;
(iv) payment of reasonable directors fees to Persons who are not otherwise Affiliates
of the Company;
(v) issuances or sales of Equity Interests (other than Disqualified Stock) of the
Company to Affiliates or employees of or consultants to the Company;
(vi) Restricted Payments that are permitted by the provisions of Section 4.8 hereof;
(vii) transactions effected pursuant to agreements in effect on the date of this
Indenture and any amendment, modification, or replacement to such agreement (so long as the
amendment, modification or replacement is not disadvantageous to the Holders of the
Securities in any respect);
(viii) advances to employees in the ordinary course of business not to exceed $2.5
million in the aggregate at any one time outstanding; and
(ix)transactions with a Permitted Joint Venture.
Section 4.14
Asset Sales.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(i) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market Value
(determined, for purposes of this clause (i), by the Company or, in the case of any asset(s)
valued in excess of $20.0 million, by the Board of Directors of the Company, in each case
evidenced by an Officers Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of; and
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(ii) at least 75% of the consideration received in the Asset Sale by the Company or
such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this
provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Companys most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Securities
and the Subsidiary Guarantees) that are assumed by the transferee of any such assets
pursuant to an agreement that releases the Company or such Restricted Subsidiary
from further liability; and
(B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are contemporaneously, subject
to ordinary settlement periods, converted by the Company or such Restricted
Subsidiary into cash, to the extent of the cash received in that conversion.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may
apply those Net Proceeds:
(i) to repay Indebtedness and other Obligations under a (A) Credit Facility and, if the
Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments
with respect thereto (B) other secured Indebtedness or (C) other Indebtedness of a
Subsidiary that does not guarantee the Securities, so long as the relevant assets were
assets of such Subsidiary (provided, in the case of (B), that such Indebtedness is not
subordinated in right of payment to the Securities);
(ii) to acquire all or substantially all of the assets of, or a majority of the Voting
Stock of, another Permitted Business;
(iii) to make payments with respect to the acquisition or license of intellectual
property rights that are used in a Permitted Business;
(iv) to make a capital expenditure in or that is useful in a Permitted Business;
(v) to retire Securities pursuant to privately negotiated transactions, open market
purchases or otherwise; or
(vi) to acquire other assets that are not classified as current assets (for the
avoidance of doubt, including acquisitions of in-process research and development) under
GAAP and that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may temporarily reduce
revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not
prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section
4.14(b) hereof shall constitute Excess Proceeds. When the aggregate amount of Excess Proceeds
exceeds $35.0 million, the Company shall make an offer (an Asset Sale Offer) to all Holders of
Securities and all holders of Parity Indebtedness to purchase the maximum principal amount of
Securities and such other Parity Indebtedness that may be purchased out of the Excess Proceeds.
The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and
unpaid
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interest and Additional Interest, if any, to the date of purchase, and shall be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use
those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Securities and other Parity Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Company shall select the Securities and such other
Parity Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
(d) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Securities pursuant to an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the Asset Sale
provisions of this Indenture by virtue of such compliance.
Section 4.15 Additional Subsidiary Guarantees. If any of the Companys Subsidiaries that
is not a Subsidiary Guarantor guarantees or becomes otherwise obligated under any Indebtedness of
the Company or any Domestic Subsidiary that is a Restricted Subsidiary, that Subsidiary shall (i)
execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the
Trustee pursuant to which such Subsidiary shall unconditionally guarantee, on a senior unsecured
(unless the Securities are secured pursuant to Section 4.11) basis, all of the Companys
obligations under the Securities and this Indenture on the terms set forth in this Indenture and
(ii) deliver to the Trustee an Opinion of Counsel that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Subsidiary. Thereafter, such Subsidiary shall be a Subsidiary
Guarantor for all purposes hereof.
Section 4.16 Designation of Restricted and Unrestricted Subsidiaries. The Board of
Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary
if that designation would not cause a Default. Any designation of a Subsidiary as an Unrestricted
Subsidiary will be deemed to be a redesignation of each of such entitys Subsidiaries as
Unrestricted Subsidiaries. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary,
the aggregate Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary shall be deemed
to be an Investment made as of the time of the designation and will reduce the amount available for
Restricted Payments under Section 4.8(a) hereof or under one or more of the clauses of the
definition of Permitted Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may
redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would
not cause a Default.
Section 4.17 Business Activities. The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries, taken as a whole.
Section 4.18 Payments for Consent. The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration
to or for the benefit of any Holder of Securities 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 and is paid to all Holders of the Securities that consent,
waive or agree to amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
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Section 4.19 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law or other law which would
prohibit or forgive the Company from paying all or any portion of the principal of, premium, if
any, interest or Additional Interest, if any, on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenant that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.
Section 4.20 Payment of Additional Interest. If Additional Interest is payable by the Company
pursuant to the Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Additional Interest that is payable, (ii)
the reason why such Additional Interest is payable and (iii) the date on which such Additional
Interest is payable. Unless and until a Trust Officer of the Trustee receives such a certificate,
the Trustee may assume without inquiry that no such Additional Interest is payable.
Section 4.21 Notice of Default. In the event that any Default or Event of Default under Section
6.1 hereof shall occur, the Company shall give prompt written notice of such Default or Event of
Default to the Trustee.
Section 4.22 Payment of Additional Amounts by a Foreign Successor Issuer.
(a) All payments made under or with respect to the Securities or any Guarantee by any Foreign
Successor Issuer or any Guarantor of a Foreign Successor Issuer (each such person, a Payor) will
be made free and clear of any withholding or deduction for or on account of any tax, duty, levy,
impost, assessment or other governmental charge of whatever nature (collectively, Tax) imposed or
levied by or on behalf of any jurisdiction in which such Payor is organized, resident or doing
business for tax purposes or from or through which such Payor makes any payment on the Securities
or any department or political subdivision of any of the foregoing (each, a Relevant Taxing
Jurisdiction), unless such Payor is required to withhold or deduct Taxes by law. For the
avoidance of doubt, a Relevant Taxing Jurisdiction shall not include the United States, any state
thereof or the District of Columbia. If a Payor is required by law to withhold or deduct any
amount for or on account of Taxes of a Relevant Taxing Jurisdiction from any payment made under or
with respect to the Securities or any Guarantee, the Payor, subject to the exceptions listed below,
will pay additional amounts (Additional Amounts) as may be necessary to ensure that the net
amount received by each Holder of the Securities after such withholding or deduction (including
withholding or deduction attributable to Additional Amounts payable hereunder) will not be less
than the amount the Holder would have received if such Taxes had not been withheld or deducted.
(b) A Payor will not, however, pay Additional Amounts to a Holder or Beneficial Owner of
Securities:
(i) to the extent the Taxes giving rise to such Additional Amounts would not have been
imposed but for the Holders or Beneficial Owners present or former connection with the
Relevant Taxing Jurisdiction (other than any connection resulting from the acquisition,
ownership, holding or disposition of Securities, the receipt of payments thereunder or under
any Guarantee and/or the exercise or enforcement of rights under any Securities or any
Guarantee);
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(ii) to the extent the Taxes giving rise to such Additional Amounts would not have been
imposed but for the failure of the Holder or Beneficial Owner of Securities, following the
Payors written request address to the Holder, to the extent such Holder or Beneficial Owner
is legally eligible to do so, to comply with any certification, identification, information
or other reporting requirements, whether required by statute, treaty, regulation or
administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption
from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant
Taxing Jurisdiction (including, without limitation, a certification that the Holder or
Beneficial Owner is not resident in the Relevant Taxing Jurisdiction);
(iii) with respect to any estate, inheritance, gift, sales or any similar Taxes;
(iv) if such Holder is a fiduciary or partnership or person other than the sole
Beneficial Owner of such Securities and the Taxes giving rise to such Additional Amounts
would not have been imposed on such payment had the Holder been the beneficiary, partner or
sole beneficial owner, as the case may be, of such Security (but only if there is no
material cost or expense associated with transferring such Security to such beneficiary,
partner or sole beneficial owner and no restriction on such transfer that is outside the
control of such beneficiary, partner or sole Beneficial Owner);
(v) to the extent the Taxes giving rise to such Additional Amounts would not have been
imposed but for the presentation by the Holder of any Security, where presentation is
required, for payment on a date more than 30 days after the date of which payment became due
and payable or the date on which payment thereof is duly provided for, whichever occurs
later;
(vi) with respect to any withholding or deduction that is imposed on a payment to an
individual and that is required to be made pursuant to the European Council Directive on the
taxation of savings income which was adopted by the ECOFIN Council on June 3, 2003 or any
law implementing or complying with, or introduced in order to conform to such directive (the
EU Savings Tax Directive) or is required to be made pursuant to the Agreement between the
European Community and the Swiss Confederation dated October 26, 2004 providing for measures
equivalent to those laid down in the EU Savings Tax Directive (the EU-Swiss Savings Tax
Agreement) or any law or other governmental regulation implementing or complying with, or
introduced in order to conform to, such agreement; or
(vii) any combination of items (i), (ii), (iii), (iv), (v), and (vi).
(c) A Payor will (i) make any such withholding or deduction required by applicable law and
(ii) remit the full amount deducted or withheld to the relevant authority in accordance with
applicable law. The Payor will make reasonable efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction
imposing such Taxes. The Payor will provide to the Trustee, within a reasonable time after the
date the payment of any Taxes so deducted or withheld are due pursuant to applicable law, either a
certified copy or tax receipts evidencing such payment, or, if such tax receipts are not reasonably
available to the Payor, such other documentation that provides reasonable evidence of such payment
by the Payor.
(d) Prior to the date on which the payment of any Additional Amounts are due, the Payor will
deliver to the Trustee such Additional Amounts payable together with an Officers Certificate
stating that such Additional Amounts will be payable on the applicable payment date, and setting
forth the Additional Amounts so payable and will also set forth such other information necessary to
enable the Trustee to pay such Additional Amounts to Holders on the applicable payment date. Any
such Officers
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Certificate will be delivered to the Trustee at least 5 Business Days in advance of when the
payments in question are required to be made (unless a shorter period of time is acceptable to the
Trustee in its reasonable discretion). The Payor will promptly publish a notice in accordance with
Section 11.2 hereof stating that such Additional Amounts will be payable and describing the
obligation to pay such amounts.
(e) The Payors, jointly and severally, will reimburse the Holders of Securities, upon written
request of such Holder of Securities and certified proof of payment for the amount of (i) any Taxes
levied or imposed by a Relevant Taxing Jurisdiction and payable by such Holder in connection with
payments made under or with respect to the Securities held by such Holder or any Guarantee; and
(ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i)
or this clause (ii), so that the net amount received by such Holder after such reimbursement will
not be less than the net amount such Holder would have received if the Taxes giving rise to the
reimbursement described in clauses (i) and/or (ii) had not been imposed, provided, however, that
the indemnification obligation provided for in this Section 4.22(e) shall not extend to Taxes
imposed for which the Holder of the Securities would not have been eligible to receive payment of
Additional Amounts hereunder by virtue of clauses (i) through (vii) of Section 4.22(b) hereof, or
to the extent such Holder received Additional Amounts with respect to such payments.
(f) In addition, a Foreign Successor Issuer will pay any stamp, issue, registration, court,
documentary, excise or other similar taxes, charges and duties, including interest and penalties
with respect thereto, imposed by any Relevant Taxing Jurisdiction at any time on or after the date
on which the Foreign Successor Issuer becomes a Foreign Successor Issuer (the Successor Date) in
respect of the execution, issuance, registration or delivery of the Securities, any Guarantee or
any other document or instrument referred to thereunder and any such taxes, charges or duties
imposed by any Relevant Taxing Jurisdiction at any time on or after the Successor Date as a result
of, or in connection with, (i) any payments made pursuant to the Securities, any Guarantee or any
other such document or instrument referred to thereunder and/or (ii) the enforcement of the
Securities, any Guarantee or any other such document or instrument referred to thereunder.
(g) The obligations described under this Section 4.22 will survive any termination, defeasance
or discharge of this Indenture and will apply mutatis mutandis to any successor Person to any Payor
and to any jurisdiction (other than the United States, any state thereof or the District of
Columbia) in which such successor is organized, doing business or is otherwise resident for Tax
purposes or any jurisdiction from or through which payment is made by such successor or its
respective agents.
(h) Whenever this Indenture refers to, in any context, the payment of principal, premium, if
any, interest or any other amount payable under or with respect to any Security or under any
Guarantee, such reference includes the payment of Additional Amounts or other payments that would
be payable pursuant to this Section 4.22, if applicable.
ARTICLE 5
MERGER, CONSOLIDATION OR SALE OF ASSETS
Section 5.1 Merger, Consolidation or Sale of Assets.
(a) The Company shall not, and shall not permit any Subsidiary Guarantor to, directly or
indirectly, consolidate or merge with or into another Person (whether or not the Company or the
Subsidiary Guarantor is the surviving corporation) or sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
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(i) either: (x) the Company or a Subsidiary Guarantor is the surviving corporation; or
(y) the Person formed by or surviving any such consolidation or merger (if other than the
Company or a Subsidiary Guarantor) or to which such sale, assignment, transfer, conveyance
or other disposition has been made is organized and validly existing under the laws of the
United States, any state of the United States or the District of Columbia, any province of
Canada or any European Union Member State; provided that, if the surviving Person is not
organized and validly existing under the laws of the United States, any state of the United
States or the District of Columbia, such Person will execute customary documentation
relating to the submission to jurisdiction, service of process and will otherwise comply
with Section 11.16 and Section 11.17 hereof;
(ii) the Person formed by or surviving any such consolidation or merger (if other than
the Company or a Subsidiary Guarantor) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the
Company, or the Subsidiary Guarantor, as applicable, under the Securities (or the Subsidiary
Guarantee), this Indenture and the Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default or Event of Default exists;
(iv) the company or the Person formed by or surviving any such consolidation or merger
(if other than the Company or a Subsidiary Guarantor), or to which such sale, assignment,
transfer, conveyance or other disposition has been made shall, on the date of such
transaction after giving pro forma effect thereto and any related financing transactions as
if the same had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.9(a) hereof; and
(v) the Company has delivered to the Trustee an Officers Certificate stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture complies with this
Article and that all conditions precedent herein provided for relating to such transaction
have been complied with and an Opinion of Counsel stating that the supplemental indenture,
if any, and the related transactions do not conflict with this Indenture.
(b) The Company may not, directly or indirectly, lease all or substantially all of its
properties or assets, in one or more related transactions, to any other Person.
Notwithstanding the foregoing: (A) any Restricted Subsidiary may consolidate with, merge into
or transfer all or part of its properties and assets to the Company or any Subsidiary Guarantor and
(B) the Company may merge with an Affiliate incorporated solely for the purpose of reincorporating
the Company in another jurisdiction within the United States of America, any state thereof or the
District of Columbia.
Section 5.2 Successor Substituted. Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company in accordance with Section 5.1 hereof, the successor
Person formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as
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the Company herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1 Events of Default. Each of the following is an Event Of Default:
(a) default in the payment of any principal of (including, without limitation, any premium, if
any, on) any Security when the same becomes due and payable (whether at maturity, upon a Redemption
Date, Change of Control Purchase Date, Purchase Date or otherwise);
(b) default in the payment of any interest or Additional Interest, if any, payable on any
Security when the same becomes due and payable and the default continues for a period of 30 days;
(c) failure by the Company or any of its Restricted Subsidiaries
(i) to comply with any of the provisions of Sections 4.8, 4.9 or 4.14 of this
Indenture, which failure remains uncured for 30 days after notice; or
(ii) to comply with the provisions described in the provisions of Sections 3.8 or 5.1
of this Indenture;
(d) the Company or any of its Restricted Subsidiaries fails to comply with any of the other
covenants contained in the Securities or this Indenture and the default continues for 60 days after
notice to the Company from the Trustee or the Holders of at least 25% in aggregate principal amount
of Securities then outstanding;
(e) default under any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the
date of this Indenture, if that default:
(i) is caused by a failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such Indebtedness on
the date of such default (a Payment Default); or
(ii) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $50.0 million or more;
(f) failure by the Company or any of its Restricted Subsidiaries to pay final non-appealable
judgments aggregating in excess of $50.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days;
(g) any Subsidiary Guarantee by a Significant Subsidiary ceases to be in full force and effect
in all material respects (except as contemplated by the terms thereof) or any Subsidiary Guarantor
that is a
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Significant Subsidiary denies or disaffirms such Subsidiary Guarantors obligations under the
Indenture or any Subsidiary Guarantee and such Default continues for 10 days after receipt of the
notice as specified in the Indenture;
(h) the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning
of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or
proceeding;
(iii) consents to the appointment of a Custodian of it or for all or substantially all
of its property; or
(iv) makes a general assignment for the benefit of its creditors;
(i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company, any Subsidiary that is a Significant Subsidiary
or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary
in an involuntary case or proceeding;
(ii) appoints a Custodian of the Company, any Subsidiary that is a significant
subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company, any Subsidiary
that is a Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company, any Subsidiary that is a Significant
Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary;
and in each case the order or decree described in this clause (i) remains unstayed and in effect
for 60 consecutive days.
Any notice given pursuant to Section 6.1(d) hereof must be in writing and must specify the
Default, demand that it be remedied and state that the notice is a Notice of Default. When any
Default under this Section 6.1 is cured, it ceases.
Section 6.2 Acceleration. If an Event of Default (other than an Event of Default specified in
clause (h) or (i) of Section 6.1 hereof) occurs and is continuing, the Trustee may, by notice to
the Company, or the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding may, by notice to the Company and the Trustee, declare all unpaid principal to the date
of acceleration on the Securities then outstanding (if not then due and payable) to be due and
payable upon any such declaration, and the same shall become and be immediately due and payable.
If an Event of Default specified in clause (h) or (i) of Section 6.1 hereof occurs, all unpaid
principal (including, without limitation, any premium, in any), and accrued interest and additional
amounts, if any on the Securities then outstanding shall ipso facto become and be immediately due
and payable without any declaration or
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other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate
principal amount of the Securities then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (a) all existing Events of Default, other than the nonpayment
of the principal of the Securities which has become due solely by such declaration of acceleration,
have been cured or waived; (b) to the extent the payment of such interest is lawful, interest at a
rate of 1% per annum over the amount of interest otherwise payable on such Security on overdue
installments of interest and Additional Interest, if any, and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid; (c) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction; and (d) all payments due
to the Trustee and any predecessor Trustee under Section 7.7 hereof have been made. No such
rescission shall affect any subsequent default or impair any right consequent thereto.
Section 6.3 Other Remedies. If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy by proceeding at law or in equity to collect
the payment of the principal of or interest or Additional Interest, if any, on the Securities or to
enforce the performance of any provision of such 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 to the extent permitted by
law.
Section 6.4 Waiver of Defaults and Events of Default. Subject to Sections 6.7 and 9.2 hereof, the
Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to
the Trustee may waive an existing Default or Event of Default and its consequence, except a Default
or Event of Default in the payment of the principal of, premium, if any, or interest or Additional
Interest, if any, on any Security when due or any Default or Event of Default in respect of any
provision of this Indenture or the Securities which, under Section 9.2 hereof, cannot be modified
or amended without the consent of the Holder of each Security affected. When a Default or Event of
Default is waived, it is cured and ceases.
Section 6.5 Control by Majority. The Holders of a majority in aggregate principal amount of all
Securities then outstanding may direct the time, method and place of conducting any proceeding for
exercising any remedy or power available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights of another Holder or
the Trustee, or that may involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it; provided, however, that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 6.6 Limitations on Suits. A Holder may not pursue any remedy with respect to this
Indenture or the Securities (except actions for payment of overdue principal, premium, if any, or
interest or Additional Interest, if any) unless:
(a) the Holder gives to the Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the then outstanding
Securities make a written request to the Trustee to pursue the remedy;
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(c) such Holder or Holders offer to the Trustee reasonable indemnity to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(e) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal amount of the
Securities.
A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over such other Securityholder.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of the principal of, interest
and Additional Interest, if any, on the Security, on or after the respective due dates expressed in
the Security and this Indenture and to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default in the payment of principal,
interest or Additional Interest, if any, specified in clause (a) or (b) of Section 6.1 hereof
occurs and is continuing with respect to any Securities, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or another obligor on the
Securities for the whole amount of principal and accrued interest or Additional interest, if any,
remaining unpaid, together with, to the extent that payment of such interest is lawful, interest on
overdue principal and overdue installments of interest or Additional Interest, if any, in each case
at a rate equal to the interest rate then in effect on such Security plus 1% per annum and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
Section 6.9 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
(including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any money or other property payable or deliverable on
any such claims and to distribute the same, and any Custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7 hereof,
and to the extent that such payment of the reasonable compensation, expenses, disbursements and
advances in any such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions, dividends, money,
securities and other property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to, or, on behalf
of any Holder, to authorize, accept or adopt any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10 Priorities. If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First, to the Trustee for amounts due under Section 7.7 hereof;
Second, to Holders for amounts due and unpaid on the Securities for principal, interest
and Additional Interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal, interest and
Additional Interest, if any, respectively; and
Third, the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10.
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee,
a court in its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit made by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in aggregate principal amount
of the Securities then outstanding.
ARTICLE 7
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of care and skill in
its exercise as a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties as are specifically set forth in this
Indenture and no others; and
(B) 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. The Trustee, however, shall examine any certificates and opinions which by any
provision hereof are specifically required to be delivered to the Trustee to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except (subject to the TIA) that:
(A) this paragraph does not limit the effect of subsection (b) of this Section 7.1;
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(B) 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
(C) 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 6.5
hereof.
(d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers unless the Trustee shall have received satisfactory
indemnity in its opinion against potential costs and liabilities incurred by it relating thereto.
(e) Every provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.2 Rights of Trustee. Subject to Section 7.1 hereof:
(a) The Trustee may rely conclusively 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 (or both), which shall conform to Section 11.4(b)
hereof. The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers Certificate or Opinion of Counsel.
(c) The Trustee may act through its agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and protection in
respect of any such action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request 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.
(g) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry
or investigation into
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such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by reason of such
inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the Trustee at the Corporate
Trust Office, 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.
(j) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss
or damage and regardless of the form of action.
(k) In no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the
Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
Section 7.3 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 Company or an Affiliate
of the Company with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 7.10 and 7.11 hereof.
Section 7.4 Trustees Disclaimer. The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for the Companys use of
the proceeds from the Securities, and it shall not be responsible for any statement in the
Securities other than its certificate of authentication.
Section 7.5 Notice of Default or Events of Default. If a default or an Event of Default occurs
and is continuing and if it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the Default or Event of Default within 90 days after it is known by the Trustee.
However, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding notice is in the interests of Securityholders, except in the
case of a Default or an Event of Default in payment of the principal (including premium, if any)
of, interest or Additional Interest, if any, on any Security.
Section 7.6 Reports by Trustee to Holders. If such report is required by TIA Section 313, within
60 days after each May 15, beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b)(2) and (c).
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A copy of each report at the time of its mailing to Holders shall be mailed to the Company and
filed with the SEC and each stock exchange, if any, on which the Securities are listed. The
Company shall notify the Trustee whenever the Securities become listed on any stock exchange or
listed or admitted to trading on any quotation system and any changes in the stock exchanges or
quotation systems on which the Securities are listed or admitted to trading and of any delisting
thereof.
Section 7.7 Compensation and Indemnity. The Company shall pay to the Trustee from time to time
such compensation (as agreed to from time to time by the Company and the Trustee in writing) for
its services (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust). The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made by it. Such
expenses may include the reasonable compensation, disbursements and expenses of the Trustees
agents and counsel.
The Company shall indemnify the Trustee or any predecessor Trustee (which for purposes of this
Section 7.7 shall include its officers, directors, employees and agents) for, and hold it harmless
against, any and all loss, liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), (including reasonable legal fees and
expenses) incurred by it in connection with the acceptance or administration of its duties under
this Indenture or any action or failure to act as authorized or within the discretion or rights or
powers conferred upon the Trustee hereunder including the reasonable costs and expenses of the
Trustee and its counsel in defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek indemnity. The
Company need not pay for any settlement effected without its prior written consent, which shall not
be unreasonably withheld.
The Company need not reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by it resulting from its gross negligence or bad faith.
To secure the Companys payment obligations in this Section 7.7, the Trustee shall have a
senior claim to which the Securities are hereby made subordinate on all money or property held or
collected by the Trustee, except such money or property held in trust to pay the principal of,
interest and Additional Interest, if any, on the Securities. The obligations of the Company under
this Section 7.7 shall survive the satisfaction and discharge of this Indenture or the resignation
or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in
clause (g) or (h) of Section 6.1 hereof occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law to the extent
permitted by law. The provisions of this Section shall survive the termination of this Indenture.
Section 7.8 Replacement of Trustee. The Trustee may resign by so notifying the Company. The
Holders of a majority in aggregate principal amount of the Securities then outstanding may remove
the Trustee by so notifying the Trustee and may, with the Companys written consent, appoint a
successor Trustee. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for
any reason, the Company shall promptly appoint a successor Trustee. The resignation or removal of
a Trustee shall not be effective until a successor Trustee shall have delivered the written
acceptance of its appointment as described below.
If a successor Trustee does not take office within 45 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of 10% in principal amount of the
Securities then outstanding may petition any court of competent jurisdiction for the appointment of
a successor Trustee at the expense of the Company.
If the Trustee fails to comply with Section 7.10 hereof, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee and be released from its obligations
(exclusive of any liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, 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.
A successor Trustee shall mail notice of its succession to each Holder.
A retiring Trustee shall not be liable for the acts or omissions of any successor Trustee
after its succession.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Companys
obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust assets (including the
administration of this Indenture) to, another corporation, the resulting, surviving or transferee
corporation, without any further act, shall be the successor Trustee, provided such transferee
corporation shall qualify and be eligible under Section 7.10 hereof. Such successor Trustee shall
promptly mail notice of its succession to the Company and each Holder.
Section 7.10 Eligibility; Disqualification. The Trustee shall always satisfy the requirements of
paragraphs (1), (2) and (5) of TIA Section 310(a). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000. If at any time the Trustee
shall cease to satisfy any such requirements, it shall resign immediately in the manner and with
the effect specified in this Article 7. The Trustee shall be subject to the provisions of TIA
Section 310(b). Nothing herein shall prevent the Trustee from filing with the SEC the application
referred to in the penultimate paragraph of TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against the Company. The Trustee shall comply with
TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE 8
DEFEASANCE; SATISFACTION AND
DISCHARGE OF INDENTURE
Section 8.1 Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further
effect (except as to any surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in section 2.7 hereof and (ii) Securities for whose payment money
has theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 8.5 hereof) have been delivered to the Trustee for cancellation;
or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation are within one year of the maturity date and the Company has
irrevocably deposited or caused to be irrevocably deposited cash, non-callable U.S.
government securities or a combination thereof with the Trustee or a Paying Agent
(other than the Company or any of their Affiliates) as trust funds in trust for the
purpose of and in an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest (including Additional Interest, if any) to the date of such
deposit (in the case of Securities which have become due and payable);
(b) no Default or Event of Default has occurred and is continuing on the date of the
deposit or will occur as a result of the deposit and the deposit will not result in a breach
or violation of or constitute a default under, any other instrument to which the Company is
a party or by which the Company is bound, and as to which the rights of the other parties
thereto are senior to those of the Holders;
(c) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(d) the Company has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7 hereof shall survive and, if cash, non-callable U.S.
government securities or a combination thereof shall have been deposited with the Trustee pursuant
to subclause (ii) of clause (a) of this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6,
2.7, 2.12, 4.2, 4.3 and 7.8, this Article 8 and Section 11.5, shall survive until the Securities
have been paid in full.
Section 8.2 Legal Defeasance. The Company and the Subsidiary Guarantors shall be deemed to have
paid and will be discharged from any and all obligations in respect of this Indenture and the
Securities (including the Guarantees) on the date of the deposit referred to in clause (a) of this
Section 8.2,
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and the provisions of this Indenture shall no longer be in effect with respect to the
Securities (Legal Defeasance), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same, except for the following provisions, which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding
Securities to receive solely from the trust fund described in clause (a) below payments in respect
of the principal of, premium, if any, and interest (including Additional Interest, if any) on such
Securities when such payments are due, (ii) the Companys obligations with respect to such
Securities under Article 2 and Section 4.2 hereof, (iii) the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder, including, without limitation, Section 7.7
hereof and the Companys obligations in connection therewith and (iv) this Section 8.2. Subject to
compliance with this Section 8.2, the Company may exercise their option under this Section 8.2
notwithstanding the prior exercise of their option under Section 8.3 hereof. The following
conditions shall apply to Legal Defeasance:
(a) the Company shall have irrevocably deposited with the Trustee, in trust, for the
benefit of the Holders cash in U.S. dollars, U.S. Government Obligations, or a combination
thereof, in such amounts as shall be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if any, and
interest on the Securities at the Stated Maturity thereof or on the applicable Redemption
Date, as the case may be and the Company must specify whether the Securities are being
defeased to their Stated Maturity or to a particular Redemption Date;
(b) the Company shall have delivered to the Trustee an Opinion of Counsel (based on a
ruling published by the United States Internal Revenue Service or other change in the
applicable U.S. federal income tax law) in the United States reasonably acceptable to the
Trustee to the effect that the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such deposit and Legal Defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and Legal Defeasance had not occurred;
(c) no Default or Event of Default shall have occurred and be continuing either: (i) on
the date of such deposit (other than a Default or an Event of Default resulting from the
borrowing of funds to be applied to such deposit or (ii) insofar as Events of Default from
bankruptcy or insolvency events are concerned, at the time in the period ending on the 91st
day after the date of deposit;
(d) the Legal Defeasance shall not result in a breach or violation of, or constitute a
default under any material agreement or instrument(other than this Indenture) to which the
Company or any of its Restricted Subsidiaries is a party or by which the Company or any of
its Restricted Subsidiary is bound;
(e) the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee to the effect that after the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors rights generally;
(f) the Company must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Securities
over the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
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(g) the Company must deliver to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance have
been complied with.
After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Companys obligations under the Securities and this Indenture except for those
surviving obligations in the immediately preceding paragraph.
Notwithstanding the foregoing, the Opinion of Counsel required by Section 8.2(b) hereof with
respect to a Legal Defeasance need not be delivered if all Securities not theretofore delivered to
the Trustee for cancellation (1) have become due and payable or (2) shall become due and payable
upon maturity or redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Section 8.3
Covenant Defeasance.
The Company and the Subsidiary Guarantors may omit to comply with any term, provision or
condition set forth in clause (iv) of Section 5.1(a) hereof, and the Company may omit to comply
with any term, provision or condition set forth in Sections 4.8 through 4.18 hereof and any breach
of clauses (c), (d), (e), or (f), or with respect to Significant Subsidiaries only, clauses (g) or
(h) under Section 6.1 hereof shall be deemed not to be an Event of Default (Covenant Defeasance),
if in each case with respect to the outstanding Securities:
(a) the Company shall have irrevocably deposited with the Trustee, in trust, for the
benefit of the Holders cash in U.S. dollars, U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if any, and
interest on the Securities at the Stated Maturity thereof or on the applicable Redemption
Date, as the case may be, and the Company must specify whether the Securities are being
defeased to their Stated Maturity or to a particular Redemption Date;
(b) the Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to such Trustee confirming that the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the Covenant Defeasance had not
occurred;
(c) no Default or Event of Default shall have occurred and be continuing either: (i) on
the date of such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit or (ii) insofar as Events of Default from
bankruptcy or insolvency events are concerned, at the time in the period ending on the 91st
day after the date of deposit;
(d) the Covenant Defeasance shall not result in a breach or violation of, or constitute
a default under any material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(e) the Company must deliver to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee to the effect that after the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors rights generally;
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(f) the Company must deliver to the Trustee an Officers Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of Securities
over the other creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(g) the Company must deliver to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal Defeasance have
been complied with.
If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay
the principal of and interest on the Securities when due, then the obligations of the Company and
the Subsidiary Guarantors under this Indenture will be revived and no such defeasance will be
deemed to have occurred.
Upon the occurrence of a Covenant Defeasance, the Trustee shall send written notice of such
Covenant Defeasance to the Company.
Notwithstanding the foregoing, the Opinion of Counsel required by Section 8.3(b) hereof with
respect to a Covenant Defeasance need not be delivered if all Securities not theretofore delivered
to the Trustee for cancellation (1) have become due and payable or (2) shall become due and payable
upon maturity or redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Section 8.4
Application of Trust Money.
Subject to the provisions of Section 8.5 hereof, the Trustee or a Paying Agent shall hold
in trust, for the benefit of the Holders, all money deposited with it pursuant to Section 8.1, 8.2
or 8.3 hereof and shall apply the deposited money in accordance with this Indenture and the
Securities to the payment of the principal of, interest and Additional Interest, if any, on the
Securities.
Section 8.5
Repayment to the Company.
The Trustee and each Paying Agent shall promptly pay to the Company upon request any excess
money (i) deposited with them pursuant to Section 8.1, 8.2 or 8.3 hereof and (ii) held by them at
any time.
The Trustee and each Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest or Additional Interest, if any, that remains unclaimed for
two years after a right to such money has matured; provided, however, that the Trustee or such
Paying Agent, before being required to make any such payment, may at the expense of the Company
cause to be mailed to each Holder entitled to such money notice that such money remains unclaimed
and that after a date specified therein, which shall be at least 30 days from the date of such
mailing, any unclaimed balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.6
Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in accordance with Section
8.5 hereof 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, then the
Companys obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.1, 8.2 or 8.3 hereof until such time as the
Trustee or such Paying Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.5 hereof; provided, however, that if the Company have made any payment of
the principal of or interest or Additional Interest, if any, on any Securities because of the
reinstatement of
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their obligations, the Company shall be subrogated to the rights of the Holders of such
Securities to receive any such payment from the money or U.S. Government Obligations held by the
Trustee or such Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1
Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to or consent of any Holder:
(a) to comply with Section 5.1 hereof;
(b) to cure any ambiguity, defect or inconsistency;
(c) to provide for uncertificated Securities in addition to or in place of certificated
Securities;
(d) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights under this
Indenture of any such Holder;
(e) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;
(f) to conform the text of this Indenture or the Securities to any provision of the
section of the Offering Circular dated April 6, 2010 captioned Description of the Notes to
the extent that such provision was intended to be a verbatim recitation of a provision of
this Indenture or the Securities;
(g) to provide for the issuance of Additional Securities in accordance with the
limitations set forth in this Indenture as of the date hereof;
(h) to add additional Guarantees with respect to the Securities or to confirm and
evidence the release, termination or discharge of any Guarantee when such release,
termination or discharge is permitted under the Indenture; or
(i) to appoint a successor Trustee.
Section 9.2
With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the Securities with
the written consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding. The Holders of at least a majority in aggregate principal amount of
the Securities then outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities without notice to any Securityholder. However,
notwithstanding the foregoing but subject to Section 9.4 hereof, without the written consent of
each Securityholder, an amendment, supplement or waiver, including a waiver pursuant to Section 6.4
hereof, may not:
(a) reduce the principal amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
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(b) reduce the principal of or change the Stated Maturity of any Security or alter the
provisions with respect to the redemption of the Securities (other than provisions relating
to Sections 3.8, 3.14 and 4.14);
(c) reduce the rate of or change the time for payment of interest on any Security;
(d) make any Security payable in money other than U.S. Dollars;
(e) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Securities to receive payments of principal of, or
interest or premium or Additional interest, if any, on the Securities;
(f) waive a redemption payment with respect to any Security (other than a payment
required by Sections 3.8, 3.14 and 4.14);
(g) impair the right to institute suit for the enforcement of any payment on or with
respect to the Securities;
(h) modify the Subsidiary Guarantees in any manner adverse to the Holders of the
Securities; or
(i) make any change in the preceding amendment and waiver provisions.
It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under Section 9.1 or this Section 9.2 becomes
effective, the Company shall mail to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
Section 9.3
Compliance With Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall comply with the
TIA as in effect at the date of such amendment or supplement.
Section 9.4
Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is
a continuing consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holders Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (a) through (i) of Section 9.2 hereof. In that case
the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holders Security.
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Section 9.5
Notation on or Exchange of Securities.
If an amendment, supplement or waiver 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 about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that reflects the changed
terms.
Section 9.6 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amendment or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, in its sole discretion, but
need not sign it. In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and, subject to Section 7.1 hereof, shall be fully protected
in relying upon, an Opinion of Counsel stating that such amendment or supplemental indenture is
authorized or permitted by this Indenture and all conditions precedent in the Indenture to such
execution have been complied with. The Company may not sign an amendment or supplemental indenture
until its Board of Directors approves it.
Section 9.7
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.1
Guarantees.
(a) Each of the Subsidiary Guarantors, jointly and severally, hereby unconditionally
Guarantees to each Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Securities or the obligations of the Company hereunder or thereunder that: (i) the
due and punctual payment of principal, premium and interest and Additional Interest, if any, on the
Securities shall be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, (ii) the due and punctual payment of interest on the overdue principal of
and interest on the Securities, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof, and (iii) in case of any extension of time of payment
or renewal of any Securities or any of such other obligations, that same shall be promptly paid in
full when due or performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration pursuant to Section 6.2 hereof or otherwise. Failing payment when
due of any amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each
Subsidiary Guarantor shall agree that this is a Guarantee of payment and not a Guarantee of
collection.
(b) Each of the Subsidiary Guarantors hereby agrees that its obligations with regard to its
Guarantee shall be joint and several, unconditional, irrespective of the validity or enforceability
of the Securities or the obligations of the Company under this Indenture, the absence of any action
to enforce the same, the recovery of any judgment against the Company or any other obligor with
respect to this Indenture, the Securities or the obligations of the Company under this Indenture or
the Securities, any action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor. Each Subsidiary
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Guarantor further, to the extent permitted by law, shall waive and relinquish all claims,
rights and remedies accorded by applicable law to guarantors and shall agree not to assert or take
advantage of any such claims, rights or remedies, including but not limited to: (i) any right to
require any of the Trustee, the Holders or the Company (each a Benefited Party), as a condition
of payment or performance by such Subsidiary Guarantor, to (A) proceed against the Company, any
other guarantor (including any other Subsidiary Guarantor) of the obligations under the Guarantees
or any other person, (B) proceed against or exhaust any security held from the Company, any such
other guarantor or any other person, (C) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in favor of the Company or any other
person, or (D) pursue any other remedy in the power of any Benefited Party whatsoever; (ii) any
defense arising by reason of the incapacity, lack of authority or any disability or other defense
of the Company including any defense based on or arising out of the lack of validity or the
unenforceability of the obligations under the Guarantees or any agreement or instrument relating
thereto or by reason of the cessation of the liability of the Company from any cause other than
payment in full of the obligations under the Guarantees; (iii) any defense based upon any statute
or rule of law which provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal; (iv) any defense based upon any
Benefited Partys errors or omissions in the administration of the obligations under the
Guarantees, except behavior which amounts to bad faith; (v) (A) any principles or provisions of
law, statutory or otherwise, which are or might be in conflict with the terms of the Guarantees and
any legal or equitable discharge of such Subsidiary Guarantors obligations hereunder and under its
Guarantee, (B) the benefit of any statute of limitations affecting such Subsidiary Guarantors
liability hereunder and under its Guarantee or the enforcement hereof and thereof, (C) any rights
to set-offs, recoupments and counterclaims and (D) promptness, diligence and any requirement that
any Benefited Party protect, secure, perfect or insure any security interest or lien or any
property subject thereto; (vi) notices, demands, presentations, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance of the Guarantees,
notices of default under the Securities or any agreement or instrument related thereto, notices of
any renewal, extension or modification of the obligations under the Guarantees or any agreement
related thereto, and notices of any extension of credit to the Company and any right to consent to
any thereof; (vii) to the extent permitted under applicable law, the benefits of any One Action
rule; and (viii) any defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict with the terms of the
Guarantees. Except as set forth in Section 10.5, each Subsidiary Guarantor shall covenant that its
Guarantee shall not be discharged except by complete performance of the obligations contained in
its Guarantee and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or the Subsidiary Guarantors, any amount paid to either
the Trustee or such Holder, any Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(d) Each Subsidiary Guarantor shall agree that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor shall further
agree that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee,
on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Section 6.2 hereof for the purposes of any Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (ii) in the event of any declaration of acceleration of such obligations as
provided in Section 6.2 hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantors for the purpose of any such Guarantee. The
Subsidiary Guarantors shall have the right to seek contribution from any non-paying
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Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the applicable Guarantee.
Section 10.2
Execution and Delivery of Subsidiary Guarantees.
To evidence its Guarantee set forth in Section 10.1 hereof, each Subsidiary Guarantor hereby
agrees that a notation of such Subsidiary Guarantee substantially in the form of Exhibit B hereto
shall be endorsed by an officer of such Guarantor on each Security authenticated and delivered by
the Trustee and that this Indenture shall be executed on behalf of such Subsidiary Guarantor by any
of its Officers. Each of the Subsidiary Guarantors, jointly and severally, hereby agrees that its
Guarantee set forth in Section 10.1 hereof shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Subsidiary Guarantee. If an officer or
Officer whose signature is on this Indenture or on the Subsidiary Guarantee of a Subsidiary
Guarantor no longer holds that office at the time the Trustee authenticates the Security on which
the Subsidiary Guarantee of such Subsidiary Guarantor is endorsed, the Subsidiary Guarantee of such
Subsidiary Guarantor shall be valid nevertheless. The delivery of any Security by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary
Guarantees set forth in this Indenture on behalf of the Subsidiary Guarantors.
Section 10.3
Limitation on Guarantor Liability.
Each Subsidiary Guarantor shall confirm, and by its acceptance of Securities, each Holder
hereby confirms, that it is the intention of all such parties that any Guarantee of such Subsidiary
Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee and the Holders irrevocably agree, and the Subsidiary Guarantors shall
irrevocably agree, that the obligations of such Subsidiary Guarantor under this Article 10 shall be
limited to the maximum amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 10, result in the obligations of such Subsidiary Guarantor
under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.4
Merger and Consolidation of Guarantors.
(a) In case of any sale or other disposition, consolidation, merger, sale or conveyance and
upon the assumption by the successor person, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Guarantee endorsed upon the Securities
and the due and punctual performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor person shall succeed to and be substituted
for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor person thereupon may cause to be signed any or all of the Guarantees to
be endorsed upon all of the Securities available hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Guarantees theretofore
and thereafter issued in accordance with the terms of this Indenture as though all of such
Guarantees had been issued at the date of the execution hereof.
(b) Except as set forth in Articles 4 and 5 hereof, and notwithstanding clause (a) of this
Section 10.4, nothing contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary Guarantor.
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Section 10.5
Release.
(a) In the event (i) of a sale or other disposition of all or substantially all of the assets
of any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all to the Capital Stock of any Subsidiary Guarantor, in each case to a person that
is not (either before or after giving effect to such transactions) a Subsidiary of the Company, so
long as the Net Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Indenture, including without limitation Section 4.14 hereof, (ii) of
a designation by the Company of any Restricted Subsidiary that is a Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the definition thereof or (iii) the Company discharges
this Indenture under Section 8.1 or exercises its legal or covenant defeasance options under
Section 8.2 or 8.3, respectively, such Subsidiary Guarantor or, in the case of a sale or other
disposition of all or substantially all of the assets of such Subsidiary Guarantor, the corporation
acquiring such property, shall be released and relieved of any obligations under its Guarantee
without any further action being required by the Trustee or any Holder.
(b) Upon delivery by the Company to the Trustee of an Officers Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, including without limitation Section 4.8 hereof, the Trustee
shall execute any documents reasonably required in order to evidence the release of any Subsidiary
Guarantor from its obligations under its Guarantee.
(c) Any Subsidiary Guarantor not released from its obligations under its Security Guarantee
shall remain liable for the full amount of principal of and interest on the Securities and for the
other obligations of any Subsidiary Guarantor under this Indenture as provided in this Article 10.
ARTICLE 11
MISCELLANEOUS
Section 11.1
Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed
by any of Sections 310 to 317, inclusive, of the TIA through operation of Section 318(c) thereof,
such imposed duties shall control.
Section 11.2
Notices.
Any demand, authorization notice, request, consent or communication shall be given in
writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows or transmitted by facsimile transmission (confirmed by delivery in person or mail by
first-class mail, postage prepaid, or by guaranteed overnight courier) to the following facsimile
numbers:
If to the Company, to:
Valeant Pharmaceuticals International
One Enterprise
Aliso Viejo, California 92656
Attention: Corporate Secretary
Facsimile No.: (949) 461-6661
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With a copy to:
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, Pennsylvania 19103
Attention: James W. McKenzie, Jr.
Facsimile No.: (215) 963-5001
If to the Trustee, to:
The Bank of New York Mellon Trust Company, N.A.
700 South Flower Street, Suite 500
Los Angeles, CA 90017
Attn: Corporate Trust Administration
Facsimile No.: (213) 630-6298
Such notices or communications shall be effective when received.
The Company 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 Holder shall be mailed by first-class mail or
delivered by an overnight delivery service to it at its address shown on the register kept by the
Registrar.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication to a Holder is mailed in
the manner provided above, it is duly given, whether or not the addressee receives it.
The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods (including pdf files). If the party elects to give the Trustee e-mail or facsimile
instructions (or instructions by a similar electronic method) and the Trustee in its discretion
elects to act upon such instructions, the Trustees understanding of such instructions shall be
deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustees reliance upon and compliance with such instructions
notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The party providing electronic instructions agrees to assume all risks arising out of
the use of such electronic methods to submit instructions and directions to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.
Notwithstanding anything to the contrary contained herein, as long as the Securities are in
the form of a Global Security, notice to the Holders may be made electronically in accordance with
procedures of the Depositary.
Section 11.3
Communications by Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other Securityholders
with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).
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Section 11.4
Certificate and Opinion of Counsel as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee at the request of the Trustee:
(A) an Officers Certificate stating that, in the opinion of the signers, all
conditions precedent (including any covenants, compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(B) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent (including any covenants, compliance with which constitutes a condition
precedent) have been complied with.
(b) Each Officers Certificate and Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that the person making such certificate or opinion has read such
covenant or condition;
(B) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(C) a statement that, in the opinion of such person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(D) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel may rely on an
Officers Certificate or certificates of public officials.
Section 11.5
Record Date for Vote or Consent of Holders.
The Company (or, in the event deposits have been made pursuant to Section 8.1, 8.2 or 8.3
hereof, the Trustee) may set a record date for purposes of determining the identity of Holders
entitled to vote or consent to any action by vote or consent authorized or permitted under this
Indenture, which record date shall not be more than thirty (30) days prior to the date of the
commencement of solicitation of such action. Notwithstanding the provisions of Section 9.4 hereof,
if a record date is fixed, those persons who were Holders of Securities at the close of business on
such record date (or their duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent previously given, whether or
not such persons continue to be Holders after such record date.
Section 11.6
Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules (not inconsistent with the terms of this Indenture)
for action by or at a meeting of Holders. Any Registrar or Paying Agent may make reasonable rules
for its functions.
Section 11.7
Legal Holidays.
A Legal Holiday is a Saturday, Sunday or a day on which state or federally chartered
banking institutions in New York, New York and the state in which the Corporate Trust Office is
located are not required to be open. If a payment date, including any Redemption Date, Purchase
Date, Change of Control Purchase Date and Final Maturity Date, is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest or
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Additional Interest, if any, shall accrue for the intervening period on such payment. If an
interest record date is a Legal Holiday, the record date shall not be affected.
Section 11.8 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a) This Indenture and the Securities shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to principles of conflicts of laws.
(b) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or
United States Federal court sitting in The City of New York over any suit, action or proceeding
arising out of or relating to this Indenture. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient forum.
(c) EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 11.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of
the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 11.10 No Recourse Against Others.
All liability described in paragraph 13 of the Form of the Securities attached hereto as
Exhibit A of any director, officer, employee or shareowner, as such, of the Company or any
Subsidiary Guarantor is waived and released.
Section 11.11 Successors.
All agreements of the Company in this Indenture and the Securities shall bind their
successors. All agreements of the Trustee in this Indenture shall bind its successor.
Section 11.12 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each signed counterpart
shall be deemed an original, but all of them together represent the same agreement.
Section 11.13 Separability.
In case any provisions in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.14 Table of Contents, Headings, etc.
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 to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 11.15 Calculations in Respect of the Securities.
The Company and its agents shall make all calculations under the Indenture and the
Securities in good faith. In the absence of manifest error, such calculations shall be final and
binding on all Holders. The Company shall provide a copy of such calculations to the Trustee as
required hereunder.
Section 11.16 Agent for Service and Waiver of Immunities.
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By the execution and delivery of this Indenture, each Foreign Successor Entity and each
Subsidiary Guarantor that is not a Domestic Subsidiary, within 10 days of becoming a Foreign
Successor Entity or Subsidiary Guarantor that is not a Domestic Subsidiary, as applicable, will (i)
acknowledge that they will designate and appoint CT Corporation or another Person satisfactory to
the Trustee (the Authorized Agent), as their authorized agent upon whom process may be served in
any suit or proceeding arising out of or relating to this Indenture or the Securities that may be
instituted in any federal or state court in the State of New York or brought under federal or state
securities laws, and acknowledge that the Authorized Agent has accepted such designation, (ii)
submit to the jurisdiction of any such court in any such suit or proceeding, and (iii) agree that
service of process upon the Authorized Agent and written notice of said service to the Foreign
Successor Entity or Subsidiary Guarantor that is not a Domestic Subsidiary, as applicable, in
accordance with Section 11.2 shall be deemed effective service of process in any such suit or
proceeding. Each Foreign Successor Entity and Subsidiary Guarantor that is not a Domestic
Subsidiary further agrees to take any reasonable action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such designation and
appointment of the Authorized Agent in full force and effect so long as any of the Securities shall
be outstanding; provided, however, that any Foreign Successor Entity and Subsidiary Guarantor that
is not a Domestic Subsidiary, as applicable, may, by written notice to the Trustee, designate such
additional or alternative agent for service of process under this Section 11.16 that (i) maintains
an office located in the Borough of Manhattan, The City of New York, in the State of New York, (ii)
is either (x) counsel for such Foreign Successor Entity or Subsidiary Guarantor, as applicable or
(y) a corporate service company which acts as agent for service of process for other persons in the
ordinary course of its business and (iii) agrees to act as agent for service of process in
accordance with this Section 11.16. Such written notice shall identify the name of such agent for
process and the address of the office of such agent for process in the Borough of Manhattan, The
City of New York, State of New York. Upon the written request of any Holder, the Trustee shall
deliver a copy of such notice to such Holder.
Section 11.17 Judgment Currency.
The Company and each Subsidiary Guarantor shall indemnify each Holder and each Person, if any,
who controls any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any loss incurred by such party as a result of any judgment or order being
given or made against the Company, any Foreign Successor Entity or any Subsidiary Guarantor for any
United States dollar amount due under this Indenture and such judgment or order being expressed and
paid in a currency (the Judgment Currency) other than United States dollars and as a result of
any variation as between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which such party on the date of payment of such
judgment or order is able to purchase United States dollars with the amount of the Judgment
Currency actually received by such party if such party had utilized such amount of Judgment
Currency to purchase United States dollars upon such partys receipt thereof. The foregoing
indemnity shall continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term spot rate of exchange shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States dollars.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date and year first above written.
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VALEANT PHARMACEUTICALS INTERNATIONAL
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By: |
/s/ J. Michael Pearson
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Name: |
J. Michael Pearson |
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Title: |
Chief Executive Officer |
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GUARANTORS:
AMARIN PHARMACEUTICALS INC.
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By: |
/s/ Steve T. Min
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Name: |
Steve T. Min |
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Title: |
President |
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HARBOR PHARMACEUTICALS, INC.
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By: |
/s/ Steve T. Min
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Name: |
Steve T. Min |
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Title: |
President |
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HEALTHCHOICE ONLINE, LLC
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By: |
/s/ Steve T. Min
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Name: |
Steve T. Min |
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Title: |
Managing Officer |
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HYLAND CAPITAL, INC.
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By: |
/s/ Steve T. Min
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Name: |
Steve T. Min |
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Title: |
President |
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ICN SOUTHEAST, INC.
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By: |
/s/ Steve T. Min
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Name: |
Steve T. Min |
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Title: |
President |
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OCEANSIDE PHARMACEUTICALS, INC.
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By: |
/s/ Steve T. Min
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Name: |
Steve T. Min |
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Title: |
President |
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VALEANT CHINA, INC.
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By: |
/s/ Steve T.Min
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Name: |
Steve T. Min |
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Title: |
President |
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ICN MEDICAL ALLIANCE, INC.
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By: |
/s/
Peter J.Blott
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Name: |
Peter J. Blott |
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Title: |
President & Treasurer |
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VALEANT BIOMEDICALS, INC.
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By: |
/s/ Peter J. Blott
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Name: |
Peter J. Blott |
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Title: |
President & Treasurer |
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VALEANT PHARMACEUTICALS NORTH
AMERICA
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By: |
/s/ J. Michael Pearson
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Name: |
J. Michael Pearson |
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Title: |
Chief Executive Officer |
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CORIA LABORATORIES, LTD.
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By: |
/s/ J. Michael Pearson
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Name: |
J. Michael Pearson |
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Title: |
Chief Executive Officer |
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DOW PHARMACEUTICAL SCIENCES, INC.
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By: |
/s/ J. Michael Pearson
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Name: |
J. Michael Pearson |
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Title: |
Chief Executive Officer |
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS
TRUSTEE
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By: |
/s/ Alex Briffett
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Name: |
John A. (Alex) Briffett |
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Title: |
Authorized Signatory |
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EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]1
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE SECURITIES ACT), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING
ON AN EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL ACCREDITED INVESTOR
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN INSTITUTIONAL ACCREDITED
INVESTOR)) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS
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This paragraph to be included only if the Security is a Global Security. |
A-1
AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO VALEANT PHARMACEUTICALS INTERNATIONAL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF VALEANT PHARMACEUTICALS INTERNATIONAL
SO REQUESTS), (2) TO VALEANT PHARMACEUTICALS INTERNATIONAL OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.]2
[THIS SECURITY AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE TO REFLECT ANY CHANGE
IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY SHALL BE DEEMED
BY THE ACCEPTANCE OF THIS NOTE TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.]3
[THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS
AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS
ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION
RIGHTS AGREEMENT.]4
[THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 ET
SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. PURSUANT TO U.S. TREASURY REGULATION
SECTION 1.1275-3, VALEANT PHARMACEUTICALS INTERNATIONAL, AT ONE ENTERPRISE, ALISO VIEJO, CALIFORNIA
92656, WILL MAKE AVAILABLE THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE, AND THE YIELD TO
MATURITY FOR THIS SECURITY UPON REQUEST TO THE HOLDER.]5
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These paragraphs to be included only if the Security is a Restricted Security. |
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Include only if the Security is a Restricted Security. |
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Include only if a Registration Statement is not effective. |
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Include only if the Security is issued with original issue discount. |
A-2
VALEANT PHARMACEUTICALS INTERNATIONAL
7.625% SENIOR NOTES DUE 2020
Valeant Pharmaceuticals International, a Delaware corporation (the Company, which term shall
include any successor corporation under the Indenture referred to on the reverse hereof) promises
to pay to
or its registered assigns, the principal sum of
Dollars ($ ) on March 15, 2020 [or such greater or lesser amount
as is indicated on the Schedule of Exchanges of Notes on the other side of this
Note]6 and to pay interest thereon as provided on the other side of this Note.
Interest Payment Dates: March 15 and September 15, beginning September 15, 2010.
Record Dates: March 1 and September 1.
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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VALEANT PHARMACEUTICALS INTERNATIONAL
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By: |
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Name: |
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Include only if the Security is a Global Security. |
A-3
Trustees Certificate of Authentication:
This is one of the Securities referred to in
the within-mentioned Indenture for the 7.625%
Senior Notes due 2020.
THE BANK OF NEW YORK MELLON
TRUST COMPANY,
N.A., as Trustee
Dated:
A-4
[FORM OF REVERSE SIDE OF SECURITY]
VALEANT PHARMACEUTICALS INTERNATIONAL
7.625% SENIOR NOTES DUE 2020
1. INTEREST
The Company shall pay interest on this Note semiannually in arrears on March 15 and September
15, each an interest payment date, of each year, commencing on September 15, 2010, at the rate
per annum specified in the title of this Note. Interest shall accrue from and including April 9,
2010 or else the most recent interest payment date to which interest had been paid or duly provided
for to but excluding the date on which such interest is paid. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
The Company shall, (in immediately available funds) to the fullest extent permitted by law,
pay interest on overdue principal (including premium, if any) and overdue installments of interest
from the original due date to the date paid, at the rate applicable to this Note plus 1% per annum,
which interest shall be payable on demand.
All references in the Indenture and this Note to interest shall be deemed to include a
reference to Additional Interest payable pursuant to the Registration Rights Agreement with respect
to this Note. If Additional Interest is payable on this Note as contemplated under the
Registration Rights Agreement, such interest shall be payable on each interest payment date and at
maturity to the record holder entitled to interest on such date.
The interest so payable and punctually paid or duly provided for on any interest payment date
will be paid to the Person in whose name this Note is registered at the close of business on March
1 or September 1 preceding such interest payment date (the Record Date) except as provided in the
Indenture. Payment of the principal of (and premium, if any) and interest on this Note will be
made in such coin or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts and as otherwise provided in the Indenture.
2. METHOD OF PAYMENT
[The Company will make payments in respect of this Note (including principal, premium, if any,
interest and Additional Interest, if any) by wire transfer of immediately available funds to the
accounts specified by the Holder.]7 [The Company will make all payments of
principal, interest and premium and Additional Interest, if any, with respect to this Note by wire
transfer of immediately available funds to the accounts specified by the Holders, in the case of a
Holder holding an aggregate principal amount of notes of $1,000,000 or more, or, if no such account
is specified or in the case of a Holder holding an aggregate principal amount of notes of less than
$1,000,000, by mailing a check to each such Holders registered address.]8
All payments shall be made in immediately available funds in such coin or currency of the
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Include only if the Security is a Definitive Security. |
A-5
United States of America as at the time of payment is legal tender for payment of public and
private debts. Payments to any Holder holding an aggregate principal amount of Securities in
excess of $1,000,000 shall be made by wire transfer in immediately available funds to an account
maintained by such Holder in the United States, if such Holder has provided wire transfer
instructions to the Company at least 10 Business Days prior to the payment date. Any wire transfer
instructions received by the Trustee will remain in effect until revoked by the Holder.
Notwithstanding the foregoing, so long as this Note is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately available funds to
the account of the Depositary or its nominee.
3. PAYING AGENT AND REGISTRAR
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee, which term shall
include any successor trustee under the Indenture hereinafter referred to) will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without notice to the Holder.
The Company or any of their Subsidiaries may, subject to certain limitations set forth in the
Indenture, act as Paying Agent or Registrar.
4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Securities of the Company designated as its
7.625% Senior Notes Due 2020 (the Notes), issued under an Indenture dated as of April 9, 2010
(together with any supplemental indentures thereto, the Indenture), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of this Note include those stated in the
Indenture and those required by or made part of the Indenture by reference to the Trust Indenture
Act of 1939, as amended, as in effect on the date of the Indenture. This Note is subject to all
such terms, and the Holder of this Note is referred to the Indenture and said Act for a statement
of them. Capitalized terms used and not defined herein have the meanings assigned to such terms in
the Indenture.
The Company shall be entitled to issue Additional Securities pursuant to Section 2.1(c) of the
Indenture.
5. OPTIONAL REDEMPTION; PURCHASE OF NOTES AT OPTION OF HOLDER.
(a) Optional Redemption. The Notes are redeemable at the option of the Company at the
prices, and upon the terms and conditions, set forth in Section 3.7 of the Indenture.
(b) Tax Redemption. The Notes are redeemable at the option of the Company in
accordance with Section 3.15 of the Indenture.
(c) Repurchase at Option of Holder. If there is a Change of Control, the Company
shall be required to make an offer (a Change of Control Offer) to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Additional Interest thereon, if any, to the date of purchase (the Change of Control
Payment). Within 10 days following any Change of Control, the Company shall mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as required by the
Indenture.
If after the Company or a Restricted Subsidiary consummates any Asset Sale, the aggregate
amount of Excess Proceeds exceeds $35.0 million, the Company shall commence an offer to all Holders
of Notes and all holders of other Parity Indebtedness an aggregate principal amount of Notes and
such other Parity Indebtedness that may be purchased (or repaid, prepaid or redeemed) equal to the
aggregate
A-6
Excess Proceeds (an Asset Sale Offer) pursuant to Section 4.14 of the Indenture to purchase
the maximum principal amount of Notes and other Parity Indebtedness that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Additional Interest thereon, if any, to the date fixed
for the closing of such offer, in accordance with the procedures set forth in the Indenture. To
the extent that the aggregate amount of Notes and other Parity Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may
use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other Parity Indebtedness surrendered by holders thereof exceeds the
amount of Excess Proceeds, the Company shall select the Notes and other Parity Indebtedness to be
purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to
have such Notes purchased by completing the form entitled Option of Holder to Elect Purchase on
the reverse of the Notes.
(d) Notice of Redemption. Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only
in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof called for
redemption.
6. DENOMINATIONS, TRANSFER, EXCHANGE, CANCELLATION
The Notes are in registered form, without coupons, in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. A Holder may register the transfer of or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes or other governmental charges
that may be imposed in relation thereto by law or permitted by the Indenture.
All Notes surrendered for payment, registration of transfer or exchange or conversion will, if
surrendered to the Company or any of its other Agents with respect to the Notes, be delivered to
the Trustee. The Trustee will promptly cancel all Notes delivered to it. No Notes will be
authenticated in exchange for any Notes cancelled, except as provided in the Indenture.
7. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all purposes.
8. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent will pay the money back to the Company at its written request, subject to
applicable unclaimed property law. After that, Holders entitled to money must look to the Company
for payment as general creditors unless an applicable abandoned property law designates another
person.
9. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate principal amount of the Notes then
outstanding, and an existing default or Event of Default and its consequence or compliance with any
provision of the Indenture or the Notes may be waived in a particular instance with the consent of
the Holders of a majority in aggregate principal amount of the Notes then outstanding. Without the
consent
A-7
of or notice to any Holder, the Company and the Trustee may amend or supplement the Indenture
or the Notes to, among other things, cure any ambiguity, defect or inconsistency or make any other
change that does not adversely affect the rights of any Holder.
10. SUCCESSOR ENTITY
When a successor corporation assumes all the obligations of its predecessor under the Notes
and the Indenture in accordance with the terms and conditions of the Indenture, the predecessor
corporation (except in certain circumstances specified in the Indenture) shall be released from
those obligations.
11. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) default in payment of any principal
(including, without limitation, any premium) on the Notes when due; (ii) default for 30 days in
payment of interest or Additional Interest, if any, on any Notes; (iii) failure by the Company for
60 days after notice to it to comply with certain covenants contained in the Indenture or the
Notes; (iv) default in the payment of certain indebtedness of the Company or a Significant
Subsidiary; (v) certain events of bankruptcy, insolvency or reorganization of the Company or any
Significant Subsidiary and (vi) certain other events described in the Indenture. If an Event of
Default (other than as a result of certain events of bankruptcy, insolvency or reorganization of
the Company) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding may declare all unpaid principal, premium, if any,
and accrued interest and Additional Interest, if any, to the date of acceleration on the Notes then
outstanding to be due and payable immediately, all as and to the extent provided in the Indenture.
If an Event of Default occurs as a result of certain events of bankruptcy, insolvency or
reorganization of the Company or any Significant Subsidiary, unpaid principal, premium, if any, and
accrued interest and Additional Interest, if any, on the Notes then outstanding shall become due
and payable immediately without any declaration or other act on the part of the Trustee or any
Holder, all as and to the extent provided in the Indenture. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory
to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Company is required to file periodic reports with the Trustee as
to the absence of default.
12. TRUSTEE DEALINGS WITH THE COMPANY
The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and perform services for
the Company or an Affiliate of the Company and may otherwise deal with the Company or an Affiliate
of the Company as if it were not the Trustee.
13. NO RECOURSE AGAINST OTHERS
A director, officer, employee or shareowner, as such, of the Company or any Subsidiary
Guarantor shall not have any liability for any obligations of the Company or any Subsidiary
Guarantor under the Notes or the Indenture nor for any claim based on, in respect of or by reason
of such obligations or their creation. The Holder of this Note by accepting this Note waives and
releases all such liability. The waiver and release are part of the consideration for the issuance
of this Note.
A-8
14. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating agent manually signs the
certificate of authentication on the other side of this Note.
15. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors
Act).
16. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Note and the Indenture, the
provisions of the Indenture shall control. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles of conflicts of
law.
The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: Valeant Pharmaceuticals International, One Enterprise, Aliso
Viejo, California 92656, (949) 461-6000, Attention: Investor Relations.
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may substitute another to act
for him or her.
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Your Signature: |
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Date: |
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(Sign exactly as your name appears on the other
side of this Note) |
*Signature guaranteed by:
By:
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The signature must be guaranteed by an institution which is a member of one of the following
recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. |
A-10
OPTION TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 3.8 or 4.14 of
the Indenture, check the appropriate box below:
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o Section 3.8
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o Section 4.14 |
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 3.8
or Section 4.14 of the Indenture, state the amount you elect to have purchased:
$
Date:
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Your Signature: |
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(Sign exactly as your name appears on the face of
this Note) |
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Tax Identification No.:
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Signature Guarantee*:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee). |
A-11
SCHEDULE OF EXCHANGES OF NOTES9
The following exchanges, repurchases or conversions of a part of this global Note have
been made:
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PRINCIPAL AMOUNT |
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OF THIS GLOBAL |
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SECURITY FOLLOWING |
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AUTHORIZED |
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AMOUNT OF DECREASE |
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AMOUNT OF INCREASE |
SUCH DECREASE DATE |
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SIGNATORY OF |
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IN PRINCIPAL AMOUNT |
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IN PRINCIPAL AMOUNT |
OF EXCHANGE |
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SECURITIES |
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OF THIS GLOBAL |
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OF THIS GLOBAL |
(OR INCREASE) |
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CUSTODIAN |
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SECURITY |
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SECURITY |
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This schedule should be included only if
the Security is a Global Security. |
A-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF RESTRICTED
SECURITIES10
Re: 7.625% Senior Notes Due 2020 (the Notes) of Valeant
Pharmaceuticals International (the Company).
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This certificate relates to $ principal amount of Notes owned in (check
applicable box) |
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book-entry or o definitive form by (the Transferor). |
The Transferor has requested a Registrar or the Trustee to exchange or register the transfer
of such Notes.
In connection with such request and in respect of each such Note, the Transferor does hereby
certify that the Transferor is familiar with transfer restrictions relating to the Notes as
provided in Section 2.12 of the Indenture dated as of April 9, 2010 among Valeant Pharmaceuticals
International, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as
trustee (the Indenture), and the transfer of such Note is in accordance with any applicable
securities laws of any state and is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the Securities Act) (check applicable box) or the
transfer or exchange, as the case may be, of such Note does not require registration under the
Securities Act because (check applicable box):
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Such Note is being transferred pursuant to an effective registration statement under
the Securities Act. |
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Such Note is being acquired for the Transferors own account, without transfer. |
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Such Note is being transferred to the Company or a Subsidiary (as defined in the
Indenture) of the Company. |
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Such Note is being transferred to a person the Transferor reasonably believes is a
qualified institutional buyer (as defined in Rule 144A or any successor provision
thereto (Rule 144A) under the Securities Act) that is purchasing for its own
account or for the account of a qualified institutional buyer, in each case to
whom notice has been given that the transfer is being made in reliance on such Rule
144A, and in each case in reliance on Rule 144A. |
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Such Note is being transferred pursuant to and in compliance with an exemption from
the registration requirements under the Securities Act in accordance with Rule 144
(or any successor thereto) (Rule 144) under the Securities Act. |
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Such Note is being transferred to a Non-U.S. Person in an offshore transaction in
compliance with Rule 904 of Regulation S under the Securities Act (or any successor
thereto). |
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This certificate should be included only
if this Security is a Restricted Security. |
A-13
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Such Note is being transferred to an institutional accredited investor (as defined
in Rule 501(a)(1), (2), (3) or (7) of the Securities Act) that has provided a letter
addressed to the Company, in the form of Exhibit C attached to the Indenture,
containing certain representations and agreements. |
The Transferor acknowledges and agrees that, if the transferee will hold any such Notes in the
form of beneficial interests in a global Note which is a restricted security within the meaning
of Rule 144 under the Securities Act, then such transfer can only be made pursuant to (i) Rule 144A
under the Securities Act and such transferee must be a qualified institutional buyer (as defined
in Rule 144A) or (ii) Regulation S under the Securities Act.
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Date: |
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(Insert Name of Transferor) |
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A-14
EXHIBIT B
FORM OF GUARANTEE
[Name of Subsidiary Guarantor] and its successors under the Indenture, jointly and severally
with any other Subsidiary Guarantors, hereby irrevocably and unconditionally (i) guarantee the due
and punctual payment of the principal of, premium, if any, and interest on the Securities, whether
at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on
the overdue principal of and interest, if any, on the Securities, to the extent lawful, and the due
and punctual performance of all other obligations of Valeant Pharmaceutical International (the
Company) to the Holders or the Trustee, all in accordance with the terms set forth in Article 10
of the Indenture and (ii) in case of any extension of time of payment or renewal of any Securities
or any of such other obligations, guarantee that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Capitalized terms used herein have the meanings assigned to them in the
Indenture unless otherwise indicated.
No stockholder, officer, director or incorporator, as such, past, present or future, of [name
of Guarantor] shall have any personal liability under this Subsidiary Guarantee by reason of his,
her or its status as such stockholder, officer, director or incorporator. This Subsidiary
Guarantee shall be binding upon [name of Subsidiary Guarantor] and its successors and assigns and
shall inure 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 herein conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Subsidiary Guarantee is noted shall
have been executed by the Trustee under the Indenture by the manual signature of one of its
authorized officers.
THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
This Guarantee shall be governed by and construed in accordance with the laws of the State of
New York.
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[NAME OF SUBSIDIARY GUARANTOR]
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B-1
EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Valeant Pharmaceuticals International
One Enterprise
Aliso Viejo, California 92656
Attention: General Counsel
Facsimile No.: (949) 461-6609
Re: 7.625% SENIOR NOTES DUE 2020
Dear Sirs:
Reference is hereby made to the Indenture, dated as of April 9, 2010 (the Indenture), among
Valeant Pharmaceuticals International, as issuer (the Company), the Subsidiary Guarantors party
thereto and The Bank of New York Mellon Trust Company, N.A., a banking corporation duly organized
under the laws of the State of New York, as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of: $ aggregate principal amount
of 7.625% Senior Notes Due 2020 (the Securities), we confirm that:
1. We understand that any subsequent transfer of the Securities or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Securities or any
interest therein except in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the Securities Act).
2. We understand that the offer and sale of the Securities have not been registered under the
Securities Act, and that the Securities and any interest therein may not be offered or sold except
as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the Securities or any
interest therein, we will do so only (A) to the Company or any of its subsidiaries, (B) in
accordance with Rule 144A under the Securities Act to a qualified institutional buyer (as defined
therein), (C) inside the United States to an institutional accredited investor (as defined below)
purchasing for its own account or for the account of another institutional accredited investor
that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter and, if the
proposed transfer is in respect of an aggregate principal amount of Securities of less than
$250,000, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that
such transfer is in compliance with the Securities Act, (D) pursuant to the provisions of Rule 144
under the Securities Act (if available), (E) in accordance with another exemption from the
registration requirements of the Securities Act (and based upon an opinion of counsel acceptable to
the Company) or (F) pursuant to an effective registration statement under the Securities Act, and
we further agree to provide to any person purchasing the Securities from us in a transaction
meeting the requirements of clauses (A) through (F) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Securities or beneficial interest
therein, we will be required to furnish to you and the Company such certifications, legal opinions
and other information as you and the Company may reasonably require to confirm that the proposed
sale complies
C-1
with the foregoing restrictions. We further understand that the Securities purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Securities or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional Accredited Investor) as to
each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Dated:
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[Insert Name of Accredited Investor]
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By: |
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Name: |
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Title: |
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|
C-2