INDENTURE
Published on August 21, 1996
EXHIBIT 4.2
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ADVANCED MICRO DEVICES, INC.
ISSUER
11% Senior Secured Notes due 2003
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INDENTURE
Dated as of August 1, 1996
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United States Trust Company of New York
TRUSTEE
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.............................................. 1
Section 1.02. Other Definitions........................................ 14
Section 1.03. Incorporation by Reference of Trust Indenture Act........ 15
Section 1.04. Rules of Construction.................................... 15
ARTICLE 2 THE NOTES
Section 2.01. Form and Dating.......................................... 16
Section 2.02. Execution and Authentication............................. 17
Section 2.03. Registrar and Paying Agent............................... 17
Section 2.04. Paying Agent to Hold Money in Trust...................... 18
Section 2.05. Holder Lists............................................. 18
Section 2.06. Transfer and Exchange.................................... 18
Section 2.07. Replacement Notes........................................ 21
Section 2.08. Outstanding Notes........................................ 21
Section 2.09. Treasury Notes........................................... 21
Section 2.10. Temporary Notes.......................................... 22
Section 2.11. Cancellation............................................. 22
Section 2.12. Defaulted Interest....................................... 22
Section 2.13. Record Date.............................................. 22
Section 2.14. CUSIP Number............................................. 23
ARTICLE 3 OFFERS TO PURCHASE OR REDEMPTION
Section 3.01. Notices to Trustee....................................... 23
Section 3.02. Selection of Notes to be Redeemed........................ 23
Section 3.03. Notice of Redemption..................................... 23
Section 3.04. Effect of Notice of Redemption........................... 24
Section 3.05. Deposit of Redemption Price.............................. 24
Section 3.06. Notes Redeemed in Part................................... 25
Section 3.07. Optional Redemption...................................... 25
Section 3.08. Mandatory Redemption..................................... 25
Section 3.09. Repurchase Offers........................................ 25
ARTICLE 4 COVENANTS
Section 4.01. Payment of Notes......................................... 28
Section 4.02. Maintenance of Office or Agency.......................... 28
Section 4.03. SEC Reports.............................................. 28
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Section 4.04. Compliance Certificate...................................... 29
Section 4.05. Taxes....................................................... 30
Section 4.06. Stay, Extension and Usury Laws.............................. 30
Section 4.07. Restricted Payments......................................... 30
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries................................................ 32
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.. 33
Section 4.10. Asset Sales, Collateral Asset Sales and Events of Loss...... 35
Section 4.11. Limitation on Issuances and Sales of Capital Stock of
Wholly Owned Restricted Subsidiaries........................ 37
Section 4.12. Transactions with Affiliates................................ 38
Section 4.13. Liens....................................................... 39
Section 4.14. New Credit Agreement........................................ 39
Section 4.15. Corporate Existence......................................... 39
Section 4.16. Change of Control........................................... 39
Section 4.17. Maintenance of Insurance.................................... 40
Section 4.18. Collateral Documents........................................ 40
Section 4.19. Further Assurances.......................................... 41
ARTICLE 5 SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets..................... 41
Section 5.02. Successor Corporation Substituted........................... 42
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. Events of Default and Remedies.............................. 42
Section 6.02. Acceleration................................................ 44
Section 6.03. Other Remedies.............................................. 45
Section 6.04. Waiver of Certain Existing Defaults......................... 45
Section 6.05. Control by Majority......................................... 45
Section 6.06. Limitation on Suits......................................... 46
Section 6.07. Rights of Holders of Notes to Receive Payment............... 46
Section 6.08. Collection Suit by Trustee.................................. 46
Section 6.09. Trustee May File Proofs of Claim............................ 47
Section 6.10. Priorities.................................................. 47
Section 6.11. Undertaking for Costs....................................... 48
ARTICLE 7 TRUSTEE
Section 7.01. Duties of Trustee........................................... 48
Section 7.02. Rights of Trustee........................................... 49
Section 7.03. Individual Rights of Trustee................................ 50
Section 7.04. Trustee's Disclaimer........................................ 50
Section 7.05. Notice of Defaults.......................................... 50
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Section 7.06. Reports by Trustee to Holders of the Notes.................. 51
Section 7.07. Compensation and Indemnity.................................. 51
Section 7.08. Replacement of Trustee...................................... 52
Section 7.09. Successor Trustee by Merger, etc............................ 53
Section 7.10. Eligibility; Disqualification............................... 53
Section 7.11. Preferential Collection of Claims Against Company........... 53
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Legal Defeasance or Covenant Defeasance..................... 54
Section 8.02. Legal Defeasance and Discharge.............................. 54
Section 8.03. Covenant Defeasance......................................... 54
Section 8.04. Conditions to Legal or Covenant Defeasance.................. 55
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions............... 56
Section 8.06. Repayment to Company........................................ 57
Section 8.07. Reinstatement............................................... 57
Section 8.08. Collateral.................................................. 57
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes......................... 58
Section 9.02. With Consent of Holders of Notes............................ 58
Section 9.03. Compliance with Trust Indenture Act......................... 60
Section 9.04. Revocation and Effect of Consents........................... 60
Section 9.05. Notation on or Exchange of Notes............................ 60
Section 9.06. Trustee to Sign Amendments, etc............................. 61
ARTICLE 10 COLLATERAL AND SECURITY
Section 10.01. Collateral and Security..................................... 61
Section 10.02. Recording, Etc.............................................. 62
Section 10.03. Protection of the Trust Estate.............................. 62
Section 10.04. Release of Lien............................................. 62
Section 10.05. Authorization of Actions to Be Taken by the
Trustee Under the Collateral Documents...................... 63
Section 10.06. Authorization of Receipt of Funds by the
Trustee Under the Collateral Documents...................... 63
Section 10.07. Collateral Agent............................................ 63
ARTICLE 11 MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls................................ 64
Section 11.02. Notices..................................................... 64
Section 11.03. Communication by Holders of Notes with Other
Holders of Notes............................................ 65
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CROSS-REFERENCE TABLE*
v
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
vi
INDENTURE, dated as of August 1, 1996, by and between Advanced Micro
Devices, Inc., a Delaware corporation (the "Company"), and United States Trust
Company of New York, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the Company's 11% Senior
Secured Notes due 2003 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person, (i) 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, including, without
limitation, Indebtedness incurred in connection with, or in contemplation of,
such other Person merging with or into or becoming a Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets (including, without limitation, by way of a sale and leaseback) other
than sales of inventory in the ordinary course of business consistent with past
practices (provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of Section 4.16
and/or Section 5.01 hereof and not by the provisions of Section 4.10 hereof),
and (ii) the issue or sale by the Company or any of its Restricted Subsidiaries
of Equity Interests of any of the Company's Restricted Subsidiaries, in the case
of either clause (i) or (ii), whether in a single transaction or a series of
related transactions, (a) that have a fair market value in excess of $5.0
million or (b) for net proceeds in excess of $5.0 million. Notwithstanding the
foregoing: (i) a transfer of assets by the Company to a Wholly Owned Restricted
Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to
another Wholly Owned Restricted Subsidiary, (ii) an issuance of Equity Interests
by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly
Owned Restricted Subsidiary, (iii) a Collateral Asset Sale, (iv) a Restricted
Payment that is permitted by Section 4.07 hereof, (v) the sale or exchange of
equipment with an aggregate value not to exceed $50.0 million at any one time
provided such equipment has been replaced by equipment of equal or greater value
within 45 days of such sale or exchange, (vi) the transfer of assets by the
Company or a Restricted Subsidiary to the Dresden, Germany Unrestricted
Subsidiary provided such transfer is not a Restricted Payment under Section 4.07
hereof, (vii) the transfer of assets from the Company or a Restricted
Subsidiary to the FASL Unrestricted Subsidiary provided such transfer would be
permitted pursuant to Section 4.07 hereof, (viii) any sale and leaseback
transaction with respect to equipment so long as the equipment which is the
subject of such transaction is acquired for the purpose of effecting such
transaction and the sale and leaseback of such equipment occurs no later than
120 days following the original acquisition of such equipment and the lease is a
Capital Lease Obligation and (ix) any transfer of the Equity Interests of the
Dresden, Germany Unrestricted Subsidiary pursuant to the Lien described in
clause (xvi) of the definition of "Permitted Liens" will not be deemed to be
Asset Sales.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Banks" means the Bank of America National Trust and Savings Association, ABN
AMRO Bank N.V. and Canadian Imperial Bank of Commerce, as lenders under the New
Credit Agreement, and any other lenders from time to time under the New Credit
Agreement.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors of the Company.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is to
be made, the amount of the liability in respect of a capital lease that would at
such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock, (ii)
in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited) and (iv) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) securities issued or fully guaranteed or insured
by the United States Government or any agency thereof having maturities of not
more than 12 months from the date of acquisition; (ii) certificates of deposit,
time deposits, Eurodollar time deposits, repurchase agreements, reverse
repurchase agreements, or bankers' acceptances, having in each case a tenor of
not more than 12 months, issued by any Bank, or by any U.S. commercial bank or
any branch or agency of a non-U.S. bank licensed to conduct business in the U.S.
having combined capital and surplus of not less than $100.0 million and whose
short-term securities are rated at least A-1 by S&P or at least P-1 by Moody's;
(iii) taxable and tax-exempt commercial paper of an issuer rated at least A-1 by
S&P or at least P-l by Moody's and in either case having a tenor of not more
than 270 days; (iv) medium term notes of an issuer rated at least AA by S&P or
at least Aa2 by Moody's and having a remaining term of not more than 12 months
after the date of acquisition by the Company or its Subsidiaries; (v) municipal
notes and bonds which are rated at least SP-1 or AA by S&P or at least MIG-2 or
Aa by Moody's with tenors of not more than 12 months; (vi) investments in
taxable or tax-exempt money market funds with assets greater than $500.0 million
and whose assets have average maturities less than or equal to 180 days and are
rated at least A-1 by S&P or at least P-l by Moody's; or (vii) money market
preferred instruments of an issuer rated at least A-1 by S&P or at least P-1 by
Moody's with tenors of not more than 12 months.
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"Certificated Notes" shall mean the Notes that are in the form of the Notes
attached hereto as Exhibit A that do not include the information called for by
footnotes 1 and 2 thereof.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act); (ii) the adoption of a plan relating to the liquidation or dissolution of
the Company, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 35%
of the voting stock of the Company, or (iv) the first day on which a majority of
the members of the Board of Directors of the Company are not Continuing
Directors.
"CIBC Guarantee" means the Third Amended and Restated Guaranty, dated as of
August 21, 1995, by the Company in favor of CIBC, Inc. relating to the Land
Lease, dated as of September 22, 1992, and the Building Lease, dated as of
September 22, 1992, between CIBC, Inc., as lessor, and a Wholly Owned Restricted
Subsidiary of the Company, as lessee, for the Company's headquarters, in each
case as amended as of the Issue Date.
"Collateral" means the real and other property at Fab 25 described in the
Deed of Trust and all other property and assets that from time to time secure
the Notes pursuant to the applicable Collateral Documents, including any
Replacement Collateral.
"Collateral Agent" means IBJ Schroder Bank & Trust Company until a successor
replaces it in accordance with the applicable provisions of the Intercreditor
Agreement and thereafter means the successor serving thereunder.
"Collateral Asset Sale" means any direct or indirect sale, conveyance, lease,
transfer or other disposition, including, without limitation, by means of an
amalgamation, merger, consolidation or similar transaction (each, a
"Disposition"), or a series of related Dispositions by the Company or any of its
Restricted Subsidiaries of the Collateral or any portion thereof, other than (a)
the sale of machinery, equipment, furniture, apparatus, tools or implements or
other similar property that may be defective or may have become worn out or
obsolete or no longer used or useful in the operation of Fab 25, the aggregate
fair market value of which does not exceed $10.0 million in any year or (b) the
sale or exchange of equipment in an alteration or improvement at Fab 25 with an
aggregate value not to exceed $25.0 million at any one time provided such
equipment is replaced by equipment of equal or greater value within 45 days of
such sale or exchange. A Collateral Asset Sale shall not include the
requisition of title to or the seizure, condemnation, forfeiture or casualty of
any Collateral.
"Collateral Documents" means, collectively, the Deed of Trust, the Security
Agreement, the Intercreditor Agreement or any other agreements, instruments,
financing statements or other documents that evidence, set forth or limit the
Lien of the Collateral Agent in the Collateral.
"Company" means Advanced Micro Devices, Inc., a Delaware corporation, until a
successor to Advanced Micro Devices, Inc. as the Company is appointed under this
Indenture, and thereafter, means such successor.
"Company Book Value" means, as of the date of determination, (a) the
Company's total assets less (b) the Company's Intangible Assets less (c) all of
the Company's liabilities, in each
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case determined on a consolidated basis in accordance with GAAP; provided,
however, in calculating Company Book Value the assets, Intangible Assets and
liabilities of the Dresden, Germany Unrestricted Subsidiary shall be excluded.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with an
Asset Sale (to the extent such losses were deducted in computing such
Consolidated Net Income), plus (ii) provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was included in computing such Consolidated
Net Income, plus (iii) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or
not capitalized (including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), to the extent that any
such expense was deducted in computing such Consolidated Net Income, plus (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) and other noncash charges (excluding any such non-cash charge
to the extent that it represents an accrual of or reserve for cash charges 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 charges were
deducted in computing such Consolidated Net Income, in each case, on a
consolidated basis and determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded, (iv) the cumulative effect of a change in accounting principles
shall be excluded and (v) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the Company or any of its Restricted
Subsidiaries.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months
4
after the acquisition of such business) subsequent to the Issue Date in the book
value of any asset owned by such Person or a consolidated Subsidiary of such
Person, (y) all investments as of such date in unconsolidated Subsidiaries and
in Persons that are not Subsidiaries (except, in each case, Permitted
Investments), and (z) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in accordance
with GAAP.
"Continuing Director" means, as of any date of determination, any member of
the Board of Directors of the Company who (i) was a member of such Board of
Directors on the Issue Date or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Deed of Trust" means the Deed of Trust, Assignment, Security Agreement and
Financing Statement, dated as of August 1, 1996, from the Company to the
Collateral Agent for the benefit of the Banks and the Trustee, for the further
benefit of the holders of the Notes, as amended to the extent permitted by the
terms thereof and of this Indenture.
"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.
"Depositary" means, with respect to the Notes issuable or issued in whole or
in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"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), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is 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 Notes mature.
"Dresden, Germany Unrestricted Subsidiary" means, together, AMD Saxony
Manufacturing GmbH and any Wholly Owned Subsidiary of the Company (other than
directors' qualifying shares) and formed under the laws of a jurisdiction other
than one of the United States of America which holds 100% of the equity in AMD
Saxony Manufacturing GmbH.
"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).
"Event of Loss" means (i) the loss or destruction of or damage to any
Collateral, (ii) the condemnation, seizure, confiscation, requisition of the use
or taking by exercise of the power of eminent domain or otherwise of any
Collateral or (iii) any consensual settlement in lieu of any event listed in
clause (ii), in each case whether in a single event or a series of related
events, that results in Net Proceeds from all sources in excess of $10.0
million.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Company and its Restricted
Subsidiaries (other than Indebtedness under the New Credit Agreement) in
existence on the Issue Date, until such amounts are repaid.
"Fab 25 Complex" means the Company's recently constructed 950,000 square foot
integrated circuit manufacturing facility, designated by the Company as Fab 25,
located in Austin, Texas, including, among other things, its ancillary buildings
for ultrapure water production, chemical supply, stock and gowning, and facility
support.
"FASL Unrestricted Subsidiary" means Fujitsu AMD Semiconductor Limited, a
joint venture between the Company and Fujitsu Limited.
"Fixed Charges" means, with respect to any Person for any period, the sum of
(i) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued (including, without
limitation, amortization of original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations) and (ii) the consolidated interest expense of such
Person and its Restricted Subsidiaries that was capitalized during such period,
and (iii) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries, other than
the Lien described under clause (xvi) of the definition of "Permitted Liens,"
whether or not such Guarantee or Lien is called upon, and (iv) the product of
(a) all cash dividend payments (and non-cash dividend payments in the case of a
Person that is a Restricted Subsidiary) on any series of preferred stock of such
Person, 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.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that the Company or
any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of making the computation referred to above, (i) acquisitions that have
been made by the Company or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated without giving effect to
clause (iii) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, and (iii) the
Fixed Charges
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attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of the referent Person or any of its Restricted
Subsidiaries following the Calculation Date.
"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.
"Government Securities" means securities that are (i) direct obligations of
the United States of America for the timely payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such Government Security
or a specific payment of principal of or interest on any such Government
Security held by such custodian for the account of the holder of such depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Security or the specific payment of principal of or interest on the
Government Security evidenced by such depository receipt.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness. Notwithstanding the foregoing, a Guarantee shall not include any
commitments or obligations of the Company or its Restricted Subsidiaries
relating to the Dresden, Germany Unrestricted Subsidiary until such time as such
commitments or obligations relate to Indebtedness of the Dresden, Germany
Unrestricted Subsidiary.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (i) interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and other agreements or arrangements
designed to protect such Person or any Subsidiary of such Person against
fluctuations in interest rates, and (ii) foreign exchange forward contracts,
foreign currency options and other agreements or arrangements entered into by
such Person in the ordinary course of business for the purpose of managing risks
associated with receivables on the balance sheet of such Person or any
Subsidiary of such Person denominated in foreign currencies.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in
7
accordance with GAAP, as well as all indebtedness of others secured by a Lien on
any asset of such Person (whether or not such indebtedness is assumed by such
Person) and, to the extent not otherwise included, the Guarantee by such Person
of any Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Initial Public Offering" means the first sale of securities of a Person to
an underwriter for reoffering to the public.
"Intangible Assets" means (to the extent included in the Company's assets)
(i) all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern business made
within 12 months after the acquisition of such business) subsequent to the Issue
Date in the book value of any assets owned by the Company or a consolidated
Subsidiary of the Company, (ii) all investments as of such date in
unconsolidated Subsidiaries of the Company and in Persons which are not
Subsidiaries of the Company (except, in each case, Permitted Investments) and
(iii) all unamortized debt discounts and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights,
organization and developmental expenses and other intangible items, all of the
foregoing as determined in accordance with GAAP.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as of
August 1, 1996, by and among United States Trust Company of New York, as
Trustee, Bank of America National Trust & Savings Association, as bank agent,
and IBJ Schroder Bank & Trust Company, as Collateral Agent, as amended or
modified from time to time.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances 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;
provided that (a) an acquisition of assets, Equity Interests or other securities
by the Company for consideration consisting of common equity securities of the
Company and (b) any loan or loans by the Company or its Subsidiaries to any
employee in an aggregate amount less than $1.0 million shall not be deemed to be
an Investment. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Equity Interests of such Subsidiary not
sold or disposed of.
"Issue Date" means the date on which the Notes are originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or
8
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); provided, however, that the express
subordination by the Company or any Restricted Subsidiary of any direct or
indirect loan to the Dresden, Germany Unrestricted Subsidiary permitted pursuant
to Section 4.07 shall not be deemed a Lien.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" means, with respect to any Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect
of preferred stock dividends, excluding, however, (i) any gain (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 Collateral Asset Sale
(including, without limitation, dispositions pursuant to sale and leaseback
transactions) 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 and (ii) any extraordinary or
nonrecurring gain (but not loss), together with any related provision for taxes
on such extraordinary or nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale or Collateral
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale or
Collateral Asset Sale), net of the direct costs relating to such Asset Sale or
Collateral Asset Sale (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
(other than the Notes) secured by a Lien on the asset or assets that were the
subject of such Asset Sale or Collateral Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP.
"New Credit Agreement" means that certain Credit Agreement, dated as of July
19, 1996, among the Banks and the Company providing for a $150.0 million secured
revolving line of credit and a $250.0 million secured term loan, as amended or
modified from time to time.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Notes being offered hereby) of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries (other than a Lien on Equity Interests of the Dresden, Germany
Unrestricted Subsidiary permitted pursuant to clause (xvi) of the definition of
"Permitted Liens"). Notwithstanding the foregoing, (a) a commitment or
obligation of the Company or any Restricted Subsidiary to support the Dresden,
Germany Unrestricted Subsidiary shall be Non-Recourse Debt unless such
commitment or obligation constitutes a Guarantee; (b) any direct or indirect
loan by the Company or any Restricted Subsidiary to the Dresden,
9
Germany Unrestricted Subsidiary permitted pursuant to Section 4.07 shall be
deemed Non-Recourse Debt of the Dresden, Germany Unrestricted Subsidiary; and
(c) any Guarantee by the Company or any Restricted Subsidiary of Indebtedness of
the Dresden, Germany Unrestricted Subsidiary permitted pursuant to subclause
(iv)(b) of Section 4.07 shall not, alone, cause any such Indebtedness of the
Dresden, Germany Unrestricted Subsidiary to cease to be Non-Recourse Debt of the
Dresden, Germany Unrestricted Subsidiary.
"Note Custodian" means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company hereunder pursuant
to the Prospectus, dated as of July 19, 1996, and the Prospectus Supplement,
dated August 8, 1996.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company,
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements set forth in
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel, that meets the
requirements of Section 11.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Subsidiary of the Company
in a Person, if as a result of such Investment (i) such Person becomes a Wholly
Owned Restricted Subsidiary of the Company or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Wholly Owned
Restricted Subsidiary of the Company; (d) any Restricted Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.10 hereof and (e) any Restricted
Strategic Investment, provided the aggregate amount of such Restricted Strategic
Investment and all other outstanding Restricted Strategic Investments at such
time does not exceed the sum of (i) $50.0 million, plus (ii) the amount of any
cash gain (after taking into effect disposition costs) on any Restricted
Strategic Investments sold for cash or otherwise liquidated or repaid for cash,
less (iii) the amount of any loss (after taking into effect disposition costs)
on any Restricted Strategic Investments sold or otherwise liquidated or repaid.
"Permitted Liens" means (i) Liens on Collateral securing the Notes and
amounts outstanding under the New Credit Agreement that are permitted by the
terms of this Indenture to be incurred; (ii) Liens in favor of the Company;
(iii) Liens on property of a Person existing at the time such Person is merged
into or consolidated with the Company or any Restricted Subsidiary of the
Company; provided that such Liens were in existence prior to the contemplation
of such
10
merger or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with the Company; (iv) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in existence
prior to the contemplation of such acquisition; (v) 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; (vi) Liens to secure Indebtedness permitted by clause (iv) of the
second paragraph of Section 4.09 hereof covering only the assets acquired with
such Indebtedness; (vii) Liens existing on the Issue Date; (viii) the renewal,
extension or replacement of Liens securing Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded with Permitted Refinancing Debt pursuant
to clause (v) of the second paragraph of Section 4.09 hereof, (ix) 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 shall be required in conformity with GAAP shall have
been made therefor; (x) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(xi) 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 $5.0 million at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary; (xii) Liens on assets of Unrestricted Subsidiaries that
secure Non-Recourse Debt of Unrestricted Subsidiaries; (xiii) Liens arising
solely by virtue of any statutory or common law provision relating to banker's
liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depository institution; provided that
(a) such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the Board of Governors of the Federal
Reserve System, or any authority succeeding to any of its principal functions,
and (b) such deposit account is not intended by the Company or any Restricted
Subsidiary to provide collateral to the depository institution; (xiv) Liens on
any assets, Equity Interests or other property of the Company or any Restricted
Subsidiary (other than Collateral) securing Indebtedness of the Company or any
Restricted Subsidiary permitted pursuant to clause (ii) of the second paragraph
of Section 4.09 hereof, provided that (a) such Indebtedness ranks pari passu in
right of payment with the Notes and (b) with respect to any such Lien securing
Indebtedness pursuant to the New Credit Agreement, all payments due under this
Indenture and the Notes are secured on an equal and ratable basis with the
Indebtedness so secured until such time as such Indebtedness is no longer
secured by a Lien; (xv) Liens securing Permitted Refinancing Debt used to pay
the Obligations of the Company under the CIBC Guarantee; and (xvi) any Lien on
Equity Interests of the Dresden, Germany Unrestricted Subsidiary.
"Permitted Refinancing Debt" 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 (including the CIBC Guarantee but excluding all other Guarantees)
of the Company or any of its Restricted Subsidiaries; provided that: (i) 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 so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of reasonable expenses incurred
in connection therewith); (ii) such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and has a Weighted
11
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of payment
to, the Notes on terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred either by the Company or by the Restricted Subsidiary who is the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"PLD Subsidiary" means any Restricted Subsidiary formed after the Issue Date,
to operate the business currently operated by the Company's Programmable Logic
Division.
"Replacement Collateral" means, at any relevant date in connection with a
Collateral Asset Sale or Event of Loss, assets used in the Company's business
other than the Collateral, which on such date (a) constitute similar assets to
Collateral disposed of or destroyed and do not constitute Capital Stock of any
Person, (b) are acquired by the Company at a purchase price which does not
exceed the fair market value of such Replacement Collateral (as determined in
the case of each of (a) and (b), in good faith by the Board of Directors of the
Company, on the basis of the written opinion of a qualified independent
appraiser or financial advisor prepared contemporaneously with such purchase)
and made available to the Collateral Agent, (c) are free and clear of all Liens
other than Permitted Liens, and (d) are subject to the Collateral Documents.
"Repurchase Offer" means an offer made by the Company to purchase all or any
portion of a Holder's Notes pursuant to Section 4.10 or 4.16 hereof.
"Responsible Officer" means with respect to the Trustee, any officer within
the corporate trust department of the Trustee located at the Corporate Trust
Office (or any successor group of the Trustee) and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Strategic Investments" means one or more investments by the
Company or a Restricted Subsidiary after the Issue Date in the same or a
substantially related industry or line of business as that conducted by the
Company or any Subsidiary, or as that conducted by any customer or supplier of
the Company or any Subsidiary that would provide vertical integration with such
industry or line of business, as of the Issue Date, provided such investment is
identified as such in a resolution of the Board of Directors set forth in an
Officer's Certificate delivered to the Trustee.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Corporation.
12
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means that certain Security Agreement, dated as of
August 1, 1996, between the Company and the Collateral Agent.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof. Notwithstanding the foregoing, the Dresden, Germany Unrestricted
Subsidiary shall not be deemed a Significant Subsidiary for purposes of this
Indenture.
"Subsidiary" means, with respect to any Person, (i) the FASL Unrestricted
Subsidiary, (ii) any corporation, limited liability company, association or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof) and (iii)
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 such Person or of one or more Subsidiaries of such Person
(or any combination thereof).
"Tangible Assets" means any asset of the Company which is not an Intangible
Asset.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
"Trustee" means the party named as such above unless and until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means (i) the Dresden, Germany Unrestricted
Subsidiary, (ii) the FASL Unrestricted Subsidiary, and (iii) any other
Subsidiary that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors; but only to the
extent that such Subsidiary: (a) has no Indebtedness other than Non-Recourse
Debt; (b) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Restricted Subsidiaries
has any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and (e)
has at least one director on its board of directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
a certified copy of the resolutions of the Board of Directors giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted under Section 4.07
hereof.
13
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company shall be in
default of such Section 4.09). The board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary;provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.09 hereof, (ii)
no Default or Event of Default would be in existence following such designation
and (iii) such Obligation would be allowed under Section 4.07 hereof.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person all
of the outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned by such Person or
by one or more Wholly Owned Subsidiaries of such Person and one or more Wholly
Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
14
Section 1.03. Incorporation By Reference Of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules Of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural include
the singular;
(v) provisions apply to successive events and transactions; and
15
(vi) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or rules
adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
(a) The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto which is part of this Indenture
and shall be in a principal amount of no greater than $400,000,000. The Notes
may have notations, legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject or usage. Each Note shall be
dated the date of its authentication. The Notes shall be in denominations of
$1,000 and integral multiples thereof.
(b) The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
(c) The Notes shall be issued in the form of one or more global notes,
substantially in the form of Exhibit A hereto which is part of this Indenture
(each a "Global Note"). The Global Notes shall be deposited on the date of the
closing of the sale of the Notes offered pursuant to the Offering (the "Closing
Date") with, or on behalf of, the Depositary (such nominee being referred to
herein as the "Global Note Holder"). Except as set forth in Section 2.06, the
Global Notes may be transferred, in whole and not in part, only to another
nominee of the Depositary or to a successor of the Depositary or its nominee.
The Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the text referred to in footnotes 1 and 2
thereto). The Notes issued in certificated form shall be substantially in the
form of Exhibit A attached hereto (but without including the text referred to in
footnotes 1 and 2 thereto). The Global Notes shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
16
Section 2.02. Execution and Authentication.
(a) Two Officers of the Company shall sign each Note issued hereunder for the
Company by manual or facsimile signature. The Company's seal shall be
reproduced on each Note and may be in facsimile form.
(b) If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Notes for original issue up to the
aggregate principal amount of $400,000,000. The aggregate principal amount of
Notes outstanding at any time may not exceed such amount except as provided in
Section 2.07 hereof.
(e) The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
(a) The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-Registrars and one or more additional
Paying Agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional Paying Agent. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar, except
that for purposes of Articles 3 and 8 and Section 4.16 neither the Company nor
any of its Subsidiaries shall act as Paying Agent.
(b) The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
(c) The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
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Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and shall notify the
Trustee of any Default by the Company in making any such payment. While any
such Default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Certificated Notes. When Certificated Notes
are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal amount
of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Certificated Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing.
(b) Transfer of a Certificated Security for a Beneficial Interest in the
Global Notes. A Certificated Security may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a Certificated Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with written instructions from the Holder thereof directing
the Trustee to make, or to direct the Note Custodian to make, an endorsement on
a
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Global Note to reflect an increase in the aggregate principal amount of the
Notes represented by such Global Note, in which case the Trustee shall cancel
such Certificated Security in accordance with Section 2.11 hereof and cause, or
direct the Note Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Note Custodian, the
aggregate principal amount of Notes represented by such Global Note to be
increased accordingly. If no Global Note is then outstanding, the Company shall
issue and, upon receipt of an authentication order in accordance with Section
2.02 hereof, the Trustee shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Note. The transfer and exchange of a
-------------------------------------
Global Note or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor.
(d) Restrictions on Transfer and Exchange of Global Notes.
------------------------------------------------------
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (g) of this Section 2.06), a Global Note may not be
transferred as a whole except 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.
(e) Authentication of Certificated Notes. If at any time:
-------------------------------------
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for a
Global Note and a successor Depositary for such Global Note is not
appointed by the Company within 90 days after delivery of such
notice;
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Certificated Notes
under this Indenture; or
(iii) if there shall have occurred and be continuing an Event of
Default or any event which after notice or lapse of time or both
would be an Event of Default with respect to the Notes.
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Certificated Notes in an aggregate principal amount equal to the
principal amount of such Global Note in exchange for such Global Note.
Certificated Notes issued pursuant to this Section 2.06(e) shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Certificated Notes to the
Persons in whose names such Notes are so registered.
(f) Cancellation and/or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have been exchanged for Certificated
Notes, or when all outstanding Notes have been redeemed, repurchased or
cancelled, such Global Note shall be returned to or retained and cancelled by
the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Certificated
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Notes, or outstanding Notes are redeemed, repurchased or cancelled,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Notes, by the
Trustee or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(g) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Certificated
Notes and the Global Note at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.07, 4.10, 4.16 and
9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed
in part.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or
Global Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Certificated Notes or the Global Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on the
day of selection; or
(B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute
owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes, and
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neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and the Global
Notes in accordance with the provisions of Section 2.02 hereof.
Section 2.07. Replacement Notes.
(a) If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate a
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee or the Company, as the case may be, to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company and the
Trustee may charge for their expenses in replacing a Note.
(b) Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
(a) The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
Except as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
(d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Affiliate of the Company, shall be considered as though not
outstanding, except that for the purposes of
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determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Trustee knows are so owned shall
be so disregarded.
Section 2.10. Temporary Notes.
(a) Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes.
(b) Until such exchange, Holders of temporary Notes shall be entitled to all
of the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act), unless the Company directs cancelled Notes to be returned to it. The
Company may not issue new Notes to replace Notes that it has redeemed or paid or
that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, the Company
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders of Notes on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of such defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section 2.13. Record Date.
The 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 shall be determined as the Company determines or,
if not so determined, as provided in TIA (S) 316(c).
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Section 2.14. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number and, if it does
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company will
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3
OFFERS TO PURCHASE OR REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days (or such shorter period as shall be acceptable to
the Trustee) before a redemption date, an Officers' Certificate setting forth
(i) the Section of this Indenture pursuant to which the redemption shall occur,
(ii) the redemption date, (iii) the Notes to be redeemed, (iv) the principal
amount of Notes to be redeemed and (v) the redemption price.
Section 3.02. Selection of Notes to be Redeemed.
(a) If less than all of the Notes are to be redeemed at any time,
selection of the Notes for redemption shall be made by the Trustee in compliance
with the requirements of the New York Stock Exchange or the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not so listed, on a pro rata basis, by lot or by such other method as the
Trustee shall deem fair and appropriate (and in such manner as complies with
applicable legal requirements).
(b) The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
(a) At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
(b) The notice shall identify the Notes to be redeemed and shall state:
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(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(vi) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(vi) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(vii) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(viii) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
(c) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
(a) At least one Business Day prior to any redemption date, the Company
shall deposit, or cause to be deposited, with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of, and accrued and unpaid
interest, if any, on all Notes to be redeemed on that date. The Trustee or the
Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued and unpaid interest, if any, on, all
Notes to be redeemed.
(b) If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date.
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If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) The Notes are not redeemable at the Company's option prior to August
1, 2001 (the "First Optional Redemption Date"). From and after the First
Optional Redemption Date, the Notes will be subject to redemption at the option
of the Company, in whole or in part, at the redemption prices plus accrued and
unpaid interest, if any, thereon to the applicable redemption date as set forth
in paragraph 5 of the Notes.
(b) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
Except as set forth in Sections 4.10 and 4.16 hereof, the Company shall
not be required to make mandatory redemptions or sinking fund payments prior to
maturity with respect to the Notes.
Section 3.09. Repurchase Offers.
(a) In the event that, pursuant to Section 4.10 or 4.16 hereof, the
Company shall be required to make a Repurchase Offer to all Holders, it shall
follow the procedures specified below.
(b) The Repurchase Offer shall remain open for a period of 30 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase at the purchase price as determined in
accordance with Section 4.10 or 4.16 hereof, as the case may be (the "Purchase
Price"), the principal amount of Notes required to be purchased pursuant to
Section 4.10 or 4.16 hereof, as the case may be (the "Offer Amount"), or, if
less than the Offer Amount has been tendered, all Notes tendered in response to
the Repurchase Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made.
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(c) If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if
any, shall be paid to the Person in whose name a Note is registered at the close
of business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Repurchase Offer.
(d) Upon the commencement of a Repurchase Offer, the Company shall send,
by first class mail, a notice to each of the Holders, with a copy to the
Trustee, and a notice to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice,
which shall govern the terms of the Repurchase Offer, shall state:
(i) that the Repurchase Offer is being made pursuant to this
Section 3.09 and Section 4.10 or 4.16 hereof, as the case may be, and the
length of time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not properly tendered or accepted for payment
shall remain outstanding and continue to accrue interest;
(iv) that, unless the Company defaults in making such payment,
all Notes accepted for payment pursuant to the Repurchase Offer shall
cease to accrue interest after the Purchase Date;
(v) that Holders electing to have any Notes purchased pursuant
to a Repurchase Offer shall be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes completed, or transfer by book-entry transfer, to the Paying Agent
or a depository, if appointed by the Company, specified in the notice, at
the address specified in the notice prior to the close of business on the
third Business Day preceding the Purchase Date;
(vi) that Holders shall be entitled to withdraw their tendered
Notes and their election to require the Company to purchase the Notes,
provided, that the Paying Agent or the depositary, as the case may be,
receives, not later than the close of business on the last day of the
Offer Period, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes tendered for
purchase, and a statement that such Holder is withdrawing his tendered
Notes and his election to have such Notes purchased;
(vii) that if Notes in an aggregate principal amount in excess of
the Offer Amount are tendered and not withdrawn pursuant to the Repurchase
Offer, the Company shall purchase Notes having an aggregate principal
amount equal to the Offer Amount on a pro rata basis (with such adjustment
as may be deemed appropriate so that only Notes in denominations of $1,000
or integral multiples thereof shall be purchased); and
26
(viii) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry transfer).
(e) Prior to the commencement of any Repurchase Offer, the Company shall
deliver to the Trustee an Officers' Certificate to the effect that the
Repurchase Offer complies with the provisions of this Indenture.
(f) 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 such laws or regulations are applicable in connection with the repurchase
of the Notes pursuant to a Repurchase Offer.
(g) On the Purchase Date, the Company shall, to the extent permitted by
law, (i) accept for payment the Offer Amount of Notes or portions thereof
properly tendered pursuant to the Repurchase Offer, or if less than the Offer
Amount has been tendered, all Notes tendered, (ii) deposit, or cause to be
deposited, with the Paying Agent an amount equal to the aggregate Purchase Price
in respect of all Notes or portions thereof so tendered and accepted and
(iii) deliver, or cause to be delivered, to the Trustee (A) for cancellation the
Notes so accepted together with an Officers' Certificate stating that such Notes
or portions thereof have been tendered to and purchased by the Company and (B)
an Officers' Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
3.09. The Paying Agent shall promptly (but in any case not later than three days
after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the Purchase Price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company, shall promptly authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder equal in principal amount to any unpurchased portion of the Notes
surrendered, if any, provided that each such new Note shall be in a principal
amount of $1,000 or an integral multiple thereof. Any Note not so accepted shall
be promptly mailed or delivered by the Company or the Paying Agent to the Holder
thereof. The Company shall publicly announce the results of the Repurchase Offer
in The Wall Street Journal, or if no longer published, a national newspaper of
general circulation, on or as soon as practicable after the Purchase Date.
(h) In the event the Company is required to make a Repurchase Offer
pursuant to Section 4.10, and the amount of Excess Proceeds to be applied to
such purchase would result in the purchase of a principal amount of Notes that
is not evenly divisible by $1,000, the Trustee shall promptly refund to the
Company the amount of Excess Proceeds that are not applied pursuant to the terms
of this Indenture, as the case may be, that is not necessary to purchase the
immediately lesser principal amount of Notes that is so divisible.
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
(a) The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
(b) The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02. 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 Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.03. SEC Reports.
Whether or not required by the rules and regulations of the SEC, so long
as any Notes are outstanding, the Company will furnish to the Holders of the
Notes all quarterly and annual
28
financial information that would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Results of Operations and
Financial Condition" and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants. In addition, whether
or not required by the rules and regulations of the SEC, the Company will file a
copy of all such information and reports with the SEC for public availability
(unless the SEC will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers of the Company with
a view to determining whether the Company is in compliance with this Indenture
and each Collateral Document and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Company
is in compliance with each and every covenant contained in this Indenture and
each Collateral Document and is not in default in the performance or observance
of any of the terms, provisions and conditions of this Indenture or any
Collateral Document (or, if a Default or Event of Default shall exist,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred that
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Notes is prohibited or if such event exists, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants or to a written policy
adopted by the Company's independent public accountants previously applied (a
copy of which shall be delivered to the Trustee), the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company is in violation
of any provisions of Article 4 or Article 5 hereof or, if any such violation
exists, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, within five Business Days upon any Officer becoming
aware of any Default or Event of Default, an Officers' Certificate specifying
such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
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Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Restricted Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect holders of the
Company's Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company or dividends or distributions payable to the Company or any Wholly Owned
Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Company or such
Restricted Subsidiary (except for (a) up to an aggregate of $2.0 million used to
make fractional payments in the event of a merger or reverse stock split
involving the Equity Interests of the Company or its Restricted Subsidiaries and
(b) the cashless exercise of stock options or warrants issued by the Company);
(iii) make any principal payment on, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes,
except (a) at final maturity or (b) retirement of existing issues of debt
securities by application of the proceeds from the sale of the Notes, (iv) make
any Restricted Investment (provided that (a) an Investment (other than any
direct or indirect loan or Guarantee referred to in clause (b) or (c)) by the
Company or a Restricted Subsidiary of up to $350.0 million in the Dresden,
Germany Unrestricted Subsidiary; (b) a direct or indirect loan by the Company or
a Restricted Subsidiary to its Dresden, Germany Unrestricted Subsidiary
(including a Guarantee and any payment of such Guarantee) in an amount not to
exceed $150.0 million and (c) any Guarantee arising from the Company's or any
Restricted Subsidiary's commitments or obligations with respect to the Dresden,
Germany Unrestricted Subsidiary or any guarantee of any obligation (other than
Indebtedness) of the Dresden, Germany Unrestricted Subsidiary (but, in each
case, not the payment thereof), shall not be deemed to be a Restricted
Investment; provided that no more than $225.0 million shall be invested or
loaned by the Company pursuant to subclauses (a) and (b) above in any four
consecutive quarters) or (v) designate any Restricted Subsidiary to be an
Unrestricted Subsidiary (all such payments and
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other actions set forth in clauses (i) through (v) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section 4.09
hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries after
the Issue Date (excluding Restricted Payments permitted pursuant to
subclauses (i) and (ii) of the next succeeding paragraph), is less than the
sum of (i) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the Issue Date to the end of the
Company's most recently ended fiscal quarter for which financial statements
are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds received by the
Company from the issue or sale since the Issue Date of Equity Interests of
the Company or of debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or convertible debt
securities) sold to a Subsidiary of the Company and other than Disqualified
Stock or debt securities that have been converted into Disqualified Stock),
plus (iii) to the extent that any Restricted Investment that was made after
the Issue Date is sold for cash or otherwise liquidated or repaid for cash,
the lesser of (A) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (B) the initial amount
of such Restricted Investment, plus (iv) 50% of any cash dividends received
by the Company or a Wholly Owned Restricted Subsidiary after the date of this
Indenture from an Unrestricted Subsidiary of the Company (excluding any cash
dividends from the Dresden, Germany Unrestricted Subsidiary in an amount
equal to the sum of (a) any Investment by the Company in the Dresden, Germany
Unrestricted Subsidiary provided for in clause (iv)(a) of the first paragraph
of this Section 4.07 and (b) any loan by the Company in the Dresden, Germany
Unrestricted Subsidiary provided for in clause (iv)(b) of the first paragraph
of this Section 4.07).
Provided that no Event of Default shall have occurred and be continuing, the
foregoing provisions will not prohibit (i) the payment of any dividend within 60
days after the date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this Indenture; (ii) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
of the Company in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Company) of other Equity
Interests of the Company (other than any Disqualified Stock) or the
substantially concurrent conversion of such Equity Interests for other Equity
Interests of the Company (other than Disqualified Stock); provided that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from clause
(c)(ii) of
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the preceding paragraph; (iii) the making of any principal payment on, or the
purchase, redemption, defeasance or other acquisition or retirement for value of
any subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness or the substantially concurrent sale (other
than to a Subsidiary of the Company) of Equity Interests of the Company (other
than Disqualified Stock) or the substantially concurrent conversion of such
Indebtedness into Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that are utilized
for any such redemption, repurchase, retirement or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph; (iv) an Investment by
the Company of up to $50.0 million in the Company's FASL Unrestricted Subsidiary
and the making of a Guarantee (but not the payment of such Guarantee) by the
Company of up to $175.0 million of the FASL Unrestricted Subsidiary's
Indebtedness; (v) any payments by the Company required pursuant to the terms of
the CIBC Guarantee; and (vi) Restricted Payments in an aggregate amount not to
exceed $10.0 million.
The Company may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary if such designation would not cause a Default and if, immediately
after giving effect to such designation on a pro forma basis, the Company would
be in compliance with this Section 4.07. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. All such outstanding Investments will
be deemed to constitute Investments in an amount equal to the greatest of (x)
the net book value of the Investments at the time of such designation, (y) the
fair market value of such Investments at the time of such designation and (z)
the original fair market value of such Investments at the time they were made.
Such designation will only be permitted if such Restricted Payment would be
permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (evidenced, in the case of Restricted Payments (other than cash)
with a fair market value in excess of $25.0 million, by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant to
the Restricted Payment. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section 4.07 were computed, which
calculations may be based upon the Company's latest available financial
statements.
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to (i)(a) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
32
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) 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) sell, lease or transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries,
except (in each case) for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness as in effect on the Issue Date, (b) this
Indenture, the Notes and the Collateral Documents, (c) the New Credit Agreement,
(d) applicable law, (e) any instrument governing Indebtedness or Capital Stock
of a Person acquired by the Company or any Restricted Subsidiary as in effect at
the time of such acquisition (except to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or than the property or assets of
the Person, so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred, (f) by
reason of customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices, (g) purchase
money obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired, or (h) Permitted Refinancing Indebtedness, provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are in the good faith judgment of the Board of
Directors of the Company (as evidenced by a resolution thereof set forth in an
Officers' Certificate delivered to the Trustee) no more restrictive with respect
to such dividend and other payment restrictions than those contained in the
agreements governing the Indebtedness being refinanced.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guaranty or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company will not issue any Disqualified Stock and will not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock; provided,
however, that the Company or any of its Restricted Subsidiaries may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock if
the Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which 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 2.5 to 1, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The foregoing provisions will not apply to:
(i) the incurrence by the Company of the Indebtedness represented by the
Notes;
(ii) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness, provided such Indebtedness does not exceed, as of the date
of determination, 50% of Company Book Value less (a) the principal amount
outstanding under the Notes,
33
less (b) the Obligations outstanding under the New Credit Agreement and less
(c) the aggregate amount of outstanding Indebtedness of the Company or any
Restricted Subsidiary previously incurred pursuant to this clause (ii);
provided, however, under no circumstances shall the aggregate amount of
Indebtedness (x) outstanding under the Notes, (y) incurred and outstanding
under the New Credit Agreement and (z) pursuant to outstanding Capital Lease
Obligations relating to property or equipment at the Fab 25 Complex exceed,
(A) $650.0 million on or before January 1, 1997 and (B) $800.0 million
thereafter, in each case, less any permanent reduction in the obligations and
commitments of the Company under the New Credit Agreement as provided under
Section 4.10 hereof;
(iii) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(iv) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness represented by Capital Lease Obligations (other than Capital
Lease Obligations relating to property or equipment at the Fab 25 Complex
covered by subclause (ii) above), 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 not to exceed $100.0
million at any time outstanding;
(v) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Debt in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred;
(vi) the incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Company and any of its
Wholly Owned Restricted Subsidiaries; provided, however, that (i) if the
Company is the obligor on such Indebtedness, such Indebtedness is expressly
subordinate to the payment in full of all Obligations with respect to the
Notes and (ii)(A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than the
Company or a Wholly Owned Restricted Subsidiary and (B) any sale or other
transfer of any such Indebtedness to a Person that is not either the Company
or a Wholly Owned Restricted Subsidiary 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;
(vii) the incurrence by the Company or any of its Restricted Subsidiaries
of Hedging Obligations that are incurred for the purpose of fixing or
managing (a) foreign currency risk or (b) interest rate risk with respect to
any floating rate Indebtedness that is permitted by the terms of this
Indenture to be outstanding;
(viii) the incurrence by the Company's Unrestricted Subsidiaries of Non-
Recourse Debt, provided, however, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed
to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the
Company;
34
(ix) a Guarantee by the Company of up to $175.0 million of the FASL
Unrestricted Subsidiary's Indebtedness;
(x) a Guarantee by the Company pursuant to clause (iv)(b) of the first
paragraph of Section 4.07 hereof; or
(xi) any Lien on Equity Interests of the Dresden, Germany Unrestricted
Subsidiary permitted pursuant to clause (xvi) of the definition of "Permitted
Liens."
Section 4.10. Asset Sales, Collateral Asset Sales and Events of Loss.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any Asset Sale unless (i) the Company or the Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets, Equity Interests or
other property issued or sold or otherwise disposed of (evidenced by an
Officers' Certificate delivered to the Trustee certifying as to (x) such value,
(y) the consideration received (including the value of any non-cash
consideration) and (z) if the assets, Equity Interests or other property
disposed of equals or exceeds $25.0 million in fair market value, a resolution
of the Board of Directors approving such Asset Sale and acknowledging the values
set forth in (x) and (y) above) and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents; provided that the amount of (x) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent balance
sheet) of the Company or any Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes) that are assumed
by the transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from further liability
and (y) any notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are immediately converted by the
Company or such Restricted Subsidiary into cash or Cash Equivalents (to the
extent of the cash or Cash Equivalents received), shall be deemed to be cash for
purposes of this provision.
Within 24 months after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply, or may cause the applicable Restricted Subsidiary to
apply, such Net Proceeds to (i) the acquisition by the Company of all of the
Capital Stock of any Person in the same or a substantially similar line of
business as that conducted by the Company or any of its Subsidiaries as of the
Issue Date, (ii) the making of a capital expenditure, (iii) the acquisition of
other long-term Tangible Assets, (iv) the permanent reduction of amounts
outstanding under the New Credit Agreement (and to correspondingly reduce
commitments with respect thereto) and (v) the making of a Restricted Strategic
Investment which is a Permitted Investment. Pending the final application of
any such Net Proceeds, the Company shall hold such Net Proceeds in the form of
cash or Cash Equivalents. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds."
(b) The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in a Collateral Asset Sale unless (i) such Collateral
Asset Sale involves the Collateral in its entirety, or, if such Collateral Asset
Sale involves less than all of the Collateral (a "Partial
35
Collateral Asset Sale"), such Partial Collateral Asset Sale involves a single
Collateral Asset Sale with a fair market value at the time of consummation of
such Collateral Asset Sale not exceeding $2.0 million and is not part of a
series of Collateral Asset Sales in any twelve month period with an aggregate
value (measured as of the time of consummation of such sales) exceeding $10.0
million in the aggregate; (ii) the Company receives consideration in respect of
and concurrently with such Collateral Asset Sale at least equal to the fair
market value of such Collateral; (iii) with respect to each such Collateral
Asset Sale, the Company delivers an Officers' Certificate to the Trustee dated
no more than 15 days prior to the date of consummation of the relevant
Collateral Asset Sale, certifying that (a) such sale complies with clauses
(i) and (ii) of this paragraph and (b) if the fair market value of the
Collateral being sold exceeds $25.0 million, the fair market value of such
Collateral was determined in good faith by the Board of Directors of the Company
(whose determination, if the Collateral Asset Sale involves the Collateral in
its entirety, was based on the opinion of a nationally recognized qualified
independent appraiser prepared contemporaneously with such Collateral Asset Sale
and which opinion, in such case, will be evidenced by an opinion letter of the
independent appraiser and attached to the Officers' Certificate) as evidenced by
copies of a resolution of the Board of Directors of the Company adopted in
respect of and concurrently with such Collateral Asset Sale; (iv) 100% of such
consideration is in cash or Cash Equivalents; and (v) the Net Proceeds therefrom
shall be paid directly by the purchaser thereof to the Collateral Agent,
pursuant to the applicable Collateral Document, as additional Collateral. In the
case of a Partial Collateral Asset Sale, the Company, within ninety (90) days
from the date of consummation of a Partial Collateral Asset Sale, may apply all
of the Net Proceeds therefrom to purchase or otherwise invest in Replacement
Collateral. Any such Net Proceeds not so applied shall constitute "Excess
Proceeds." In the case of a Collateral Asset Sale other than a Partial
Collateral Asset Sale all of the Net Proceeds therefrom shall constitute "Excess
Proceeds."
(c) If the Company suffers an Event of Loss, (i) the Net Proceeds
therefrom shall be paid directly by the party providing such Net Proceeds to the
Collateral Agent, pursuant to the applicable Collateral Document, as additional
Collateral and (ii) the Company shall take such actions, at its sole expense, as
may be required to ensure that the Collateral Agent pursuant to the applicable
Collateral Document, has from the date of such deposit a first ranking Lien
(subject to Permitted Liens) on such Net Proceeds pursuant to the terms of the
applicable Collateral Document. As any portion or all of the Net Proceeds from
any such Event of Loss are received by the Collateral Agent, the Company may
apply all of such amount or amounts, as received, together with all interest
earned thereon, individually or in combination, (a) to purchase or otherwise
invest in Replacement Collateral or (b) to restore the relevant Collateral. In
the event that the Company elects to restore the relevant Collateral pursuant to
the foregoing clause (b), within six months of receipt of such Net Proceeds from
an Event of Loss, the Company shall (x) give the Trustee irrevocable written
notice of such election and (y) enter into a binding commitment to restore such
Collateral, a copy of which shall be supplied to the Trustee, and shall have 24
months from the date of such binding commitment to complete such restoration,
which shall be carried out with due diligence. Any such Net Proceeds not so
applied shall constitute "Excess Proceeds."
(d) In the event that the Company decides pursuant to this Section 4.10 to
apply any portion of the Net Proceeds from a Collateral Asset Sale or an Event
of Loss to purchase or otherwise invest in Replacement Collateral, (i) the
Company shall deliver an Officers' Certificate to the
36
Trustee dated no more than 30 days prior to the date of consummation of the
relevant investment in Replacement Collateral, certifying that the purchase
price for the amount of the investment in Replacement Collateral does not exceed
the fair market value of such Replacement Collateral and, if the fair market
value of such Replacement Collateral exceeds $25.0 million, certifying that the
fair market value of such Replacement Collateral was determined in good faith by
the Board of Directors of the Company and was based on the opinion of a
nationally recognized qualified independent appraiser, attached to the Officers'
Certificate, adopted in respect of and concurrently with the investment in such
Replacement Collateral; (ii) the Trustee shall instruct the Collateral Agent to
release such certified purchase price to the Company, together with any
investment income thereon, free of the Lien of the Collateral Documents; and
(iii) the Company shall take such actions, at its sole expense, as shall be
required to ensure that the Collateral Agent has, from the date of such purchase
or investment, a first ranking Lien (subject to Permitted Liens on such
Collateral) on such Replacement Collateral under the applicable Collateral
Document.
(e) When the aggregate amount of Excess Proceeds exceeds $25.0 million, the
Company will be required to apply such Excess Proceeds (i) to make a Repurchase
Offer to all Holders of Notes to purchase the Notes at an offer price in cash in
an amount equal to 101% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase in accordance with the procedures set
forth in Section 3.09 hereof and (ii) to repay and permanently reduce amounts
outstanding under the New Credit Agreement, in each case, in proportion to the
respective amounts outstanding thereunder. The Company shall commence such
Repurchase Offer within 10 Business Days after the date that the aggregate
amount of Excess Proceeds exceeds $25.0 million by mailing the notice required
in Section 3.09 hereof to the Holders. To the extent that the aggregate amount
of Notes tendered pursuant to such Repurchase Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. The Trustee shall instruct the Collateral Agent to release
the Net Proceeds, together with any investment income thereon, to be applied to
a Repurchase Offer and to the repayment of amounts outstanding under the New
Credit Agreement to the Person entitled thereto in accordance with this
Indenture and the Intercreditor Agreement. If the aggregate principal amount of
the Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
Section 4.11. Limitation on Issuances and Sales of Capital Stock of Wholly
Owned Restricted Subsidiaries.
The Company (i) will not, and will not permit any Wholly Owned Restricted
Subsidiary of the Company to, transfer, convey, sell, lease or otherwise dispose
of any Capital Stock of any Wholly Owned Restricted Subsidiary of the Company to
any Person (other than the Company or a Wholly Owned Restricted Subsidiary of
the Company), unless (a) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Wholly Owned Restricted
Subsidiary and (b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section 4.10(a) hereof
and (ii) will not permit any Wholly Owned Restricted Subsidiary of the Company
to issue any of its Equity Interests (other than, if necessary, shares of its
Capital Stock constituting directors' qualifying shares) to
37
any Person other than to the Company or a Wholly Owned Restricted Subsidiary of
the Company. Notwithstanding the foregoing, nothing in this Section 4.11 shall
prohibit (x) the Company from selling more than 35% of its Equity Interest in
any Wholly Owned Restricted Subsidiary in connection with the Initial Public
Offering of such Wholly Owned Restricted Subsidiary, provided 100% of the net
proceeds from such Initial Public Offering received by the Company are in the
form of cash and all such proceeds are applied in accordance with Section
4.10(a) hereof or (y) the issuance and exchange of Equity Interests (other than
Disqualified Stock) of the Company's PLD Subsidiary (as defined herein) in
connection with the merger of the PLD Subsidiary with or into any Person,
provided (a) at the time of such merger, the Consolidated Cash Flow of the PLD
Subsidiary for the Company's most recently ended four full fiscal-quarters for
which financial statements are available represents less than 10% of the
Consolidated Cash Flow of the Company for the same period, (b) the Company and
the PLD Subsidiary shall enter into a written agreement providing that the
product transfer pricing in effect following such merger shall be no less
favorable to the Company than the product transfer pricing in effect during the
period set forth in (a) above, and (c) the Fixed Charge Coverage Ratio for the
period set forth in (a) above would have been 2.5 to l, determined on a pro
forma basis, as if such merger had occurred at the beginning of such period.
Section 4.12. Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, 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 contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is
on terms that are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by the Company or such Restricted Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution adopted by the majority of
the disinterested non-employee directors of the Board of Directors approving
such Affiliate Transaction or series of related Affiliate Transactions and set
forth in an Officers' Certificate certifying that such Affiliate Transaction or
series of related Affiliate Transactions comply with clause (i) above and (b)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in the principal amount of $25.0
million or more, an opinion as to the fairness to the Company or such Restricted
Subsidiary of such Affiliate Transaction or series of related Affiliate
Transactions from a financial point of view issued by an independent financial
advisor of national standing. Notwithstanding the foregoing, the following
transactions shall not be deemed Affiliate Transactions: (1) any purchases of
products by the Company from the FASL Unrestricted Subsidiary on terms no less
favorable to the Company than those determined pursuant to transfer pricing in
effect on the Issue Date; (2) any purchases of wafers from the Dresden, Germany
Unrestricted Subsidiary such that the sale of the products produced from such
wafers have a Contribution Margin of no less than 50%; (3) any employee
compensation arrangement 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; (4) transactions between
or among the Company and/or any of its Restricted Subsidiaries or (5) purchases
of Equity Interests (other than Disqualified Stock) by any
38
stockholder of the Company (or an Affiliate of a stockholder of the Company)
from the Company or any Restricted Subsidiary; provided that such Equity
Interests do not bear cash dividends. For purposes of this Section 4.12,
"Contribution Margin" shall mean the margin determined by dividing (a) the net
cash revenue realized by the Company from the sale of such products less the
cash cost to the Company of the wafer utilized in the production of such
products divided by (b) the net cash revenue realized by the Company from the
sale of such products.
Section 4.13. Liens.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom, except Permitted Liens.
Section 4.14. New Credit Agreement.
For so long as any Notes are outstanding, the Company will not amend,
modify or change in any manner the terms of the New Credit Agreement as in
effect on the Issue Date, if any such amendment, modification or change (i)
changes (to earlier dates) the dates upon which principal and interest are due
thereon; (ii) alters the redemption or prepayment provisions thereof; (iii)
alters the provisions thereof relating to dispositions of Collateral; or (iv)
alters the provisions thereof to the extent the Trustee is an express third
party beneficiary.
Section 4.15. Corporate Existence.
Subject to Article 5 and Article 11 hereof, as the case may be, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Company or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of their respective Restricted
Subsidiaries, if 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 its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.16. Change of Control.
Upon the occurrence of a Change of Control, each Holder of the Notes will
have the right to require the Company to commence a Repurchase Offer in
accordance with the procedures set forth in Section 3.09 to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Notes at an offer price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest thereon to the date of purchase (the
"Change of Control Payment"). The Company will comply with the requirements of
Rule 14e-1
39
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with a Repurchase Offer resulting from a Change of Control.
The Company shall commence such Repurchase Offer within 10 days following
any Change of Control by mailing the notice required in Section 3.09 hereof to
the Holders.
The Company will not be required to make a Repurchase Offer upon a Change
of Control if a third party makes the Repurchase Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in Section
3.09 of this Indenture applicable to a Repurchase Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Repurchase
Offer.
Section 4.17. Maintenance of Insurance.
The Company shall at all times provide, maintain, and keep in full force,
or cause to be provided, maintained and kept in full force, at no expense to the
Collateral Agent, the Trustee or the Holders of the Notes, policies of insurance
for the Collateral in an amount of not less than 100% of the full insurable
value of the Collateral with a deductible of not more than $1.0 million per
occurrence, and, if issued by companies, associations or organizations licensed
to do business in the state of California, having a rating in Best's Key Rating
Guide of not less than B+:VII, and otherwise consistent with the Company's then
existing generally applicable risk management policies, covering such
casualties, risks, perils, liabilities and other hazards as are customary for
improvements similar to the improvements in the general geographic area in which
the improvements are located. All such policies of insurance required by this
Section 4.17 shall contain an endorsement or agreement by the insurer that any
loss shall be payable in accordance with the terms of such policy
notwithstanding any act or negligence of the Company or any party holding under
the Company which might otherwise result in forfeiture of said insurance and the
further agreement of the insurer waiving all rights of setoff, counterclaim or
deductions against the Company.
Section 4.18. Collateral Documents.
Neither the Company nor any of its Subsidiaries shall amend, waive or
modify, or take or refrain from taking any action that has the effect of
amending, waiving or modifying, any provision of the Collateral Documents to
which the Company or any of its Subsidiaries is a party to the extent that such
amendment, waiver, modification or action could have an adverse effect on the
rights of the Collateral Agent, the Trustee or the Holders, provided that: (i)
the Collateral may be released or replaced as expressly provided in this
Indenture and in the Collateral Documents; (ii) this Indenture and any of the
Collateral Documents may be otherwise amended, waived or modified as set forth
in Article 9 hereof and (iii) for purposes of this Indenture, neither the
Company nor its Subsidiaries shall be deemed to be a party to the Intercreditor
Agreement.
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Section 4.19. Further Assurances.
The Company shall (and shall cause each of its Subsidiaries to) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as may be required
from time to time in order (i) to carry out more effectively the purposes of the
Collateral Documents, (ii) to subject to the Liens created by any of the
Collateral Documents any of the properties, rights or interests required to be
encumbered thereby, (iii) to perfect and maintain the validity, effectiveness
and priority of any of the Collateral Documents and the Liens intended to be
created thereby, and (iv) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Trustee any of the rights granted or now or
hereafter intended by the parties thereto to be granted to the Trustee or under
any other instrument executed in connection therewith or granted to the Company
under the Collateral Documents or under any other instrument executed in
connection therewith.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
The Company shall not consolidate or merge with or into or wind-up into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to any Person unless
(i) the Company is the surviving corporation (the "Surviving Corporation") or
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the Surviving Corporation or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Notes, this Indenture
and the Collateral Documents pursuant to a supplemental indenture or other
documents or instruments in form reasonably satisfactory to the Trustee; (iii)
immediately after such transaction, no Default or Event of Default exists under
this Indenture or the Collateral Documents; and (iv) except in the case of a
merger of the Company with or into a Wholly Owned Subsidiary of the Company, the
Surviving Corporation or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (A) will have
Consolidated Net Worth immediately after the transaction (but prior to any
purchase accounting adjustments resulting from such transaction) equal to or
greater than the Consolidated Net Worth of the Company immediately preceding the
transaction and (B) will, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.09 hereof. The Trustee shall receive
an Opinion of Counsel and an Officers' Certificate, each
41
stating that any such consolidation, merger, winding-up, sale, transfer, lease,
conveyance or other disposition meets the requirements of this Section 5.01, and
that all conditions precedent herein provided for in clauses (i) through (iv)
above relating to such transaction have been complied with.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the Company shall refer to or include
instead the successor Person and not the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of, premium, if any, and interest, if any, on the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default and Remedies.
An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on the Notes when
the same becomes due and payable and such default continues for a period of
30 days;
(b) the Company defaults in the payment of principal of or premium, if
any, on the Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise;
(c) the Company fails to observe or perform any covenant, condition or
agreement on the part of the Company to be observed or performed pursuant to
Sections 3.09, 4.07, 4.09, 4.10 and 4.16 hereof;
(d) the Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Notes or this Indenture and the Default
continues for the period and after the notice specified below;
(e) a default or event of default occurs under the New Credit Agreement
or 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
42
of its Restricted Subsidiaries) whether such Indebtedness or guarantee now
exists, or is created after the Issue Date, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results
in the acceleration of such Indebtedness prior to its express maturity and,
in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has
been a Payment Default or the maturity of which has been so accelerated,
aggregates $10.0 million or more;
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its Restricted Subsidiaries and such judgments are not paid,
discharged or stayed for a period of 30 days, provided that the aggregate of
all such undischarged judgments exceeds $50.0 million;
(g) the Company materially breaches any representation or warranty set
forth in the Collateral Documents, or a material default by the Company in
the performance of any covenant set forth in the Collateral Documents, or
repudiation by the Company of its obligations under the Collateral Documents
or the unenforceability of the Collateral Documents against the Company for
any reason;
(h) the Company, the FASL Unrestricted Subsidiary or any Significant
Subsidiary or any group of Subsidiaries (not including the Dresden, Germany
Unrestricted Subsidiary) that, taken as a whole, would constitute a
Significant Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors,
or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company, the FASL Unrestricted
Subsidiary or any Significant Subsidiary or any group of Subsidiaries (not
including the Dresden, Germany Unrestricted Subsidiary) that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company, the FASL Unrestricted
Subsidiary or any Significant Subsidiary or any group of Subsidiaries (not
including the Dresden,
43
Germany Unrestricted Subsidiary) that, taken as a whole, would constitute
a Significant Subsidiary or for all or substantially all of the property
of the Company, the FASL Unrestricted Subsidiary or any Significant
Subsidiary or any group of Subsidiaries (not including the Dresden,
Germany Unrestricted Subsidiary) that, taken as a whole, would constitute
a Significant Subsidiary, or
(iii) orders the liquidation of the Company, the FASL
Unrestricted Subsidiary or any Significant Subsidiary or any group of
Subsidiaries (not including the Dresden, Germany Unrestricted Subsidiary)
that, taken as a whole, would constitute a Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 consecutive
days.
A Default under clause (d) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
then outstanding Notes notify the Company and the Trustee, of the Default and
the Company does not cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
If an Event of Default occurs on or after August 1, 2001 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
or any Subsidiary with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to August 1, 2001
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company or any Subsidiary with the intention of avoiding the
prohibition on redemption of the Notes prior to such date, then, upon
acceleration of the Notes, an additional premium shall also become and be
immediately due and payable in an amount, for each of the years beginning on
August 1, of the years set forth below, as set forth below (expressed as a
percentage of principal amount):
Year Percentage
---- ----------
1996............................. 11.000%
1997............................. 9.900%
1998............................. 8.800%
1999............................. 7.700%
2000............................. 6.600%
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (h) and (i) of Section 6.01 hereof relating to either the Company, the
FASL Unrestricted Subsidiary or any Significant Subsidiary or group of
Subsidiaries (not including the Dresden, Germany Unrestricted Subsidiary) that,
taken together, would constitute a Significant Subsidiary) occurs and is
44
continuing, the Trustee by notice to the Company or the Holders of at least 25%
in principal amount of the then outstanding Notes by notice to the Company and
the Trustee may declare the unpaid principal of and any accrued interest on all
the Notes to be due and payable. Upon such declaration the principal and
interest, if any, shall be due and payable immediately. If an Event of Default
specified in clause (h) or (i) of Section 6.01 hereof relating to either the
Company, the FASL Unrestricted Subsidiary or any Significant Subsidiary or group
of Subsidiaries (not including the Dresden, Germany Unrestricted Subsidiary)
that, taken as a whole, would constitute a Significant Subsidiary occurs, such
an amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the then outstanding Notes by written
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal and interest, that has become
due solely because of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Certain Existing Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it, including providing instructions to the
45
Collateral Agent to exercise any remedy under the Collateral Documents. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture that the Trustee determines may be unduly prejudicial to the rights of
other Holders of Notes or that may involve the Trustee in personal liability.
Solely for purposes of calculating "Directing Creditors" pursuant to the
terms of the Intercreditor Agreement, the Holders of a majority in aggregate
principal amount of the then outstanding Notes may delegate instructional
authority under the Intercreditor Agreement to any committee of such Holders, in
which event such Holders shall be deemed to represent 100% of the Credit Class
(as defined in the Intercreditor Agreement) representing the Notes.
Section 6.06. Limitation on Suits.
(a) A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(i) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such notice from the
Company;
(ii) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request; provided, however, that such
provision does not affect the right of a Holder to sue for enforcement of
any overdue payment thereon.
(b) A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
46
If an Event of Default specified in Section 6.01(a) or Section 6.01(b)
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful, interest
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
(a) If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
47
Third: without duplication, to Holders for any other obligations owing to
the Holders under the Notes, this Indenture or the Collateral Documents; and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
(b) The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
the Collateral Documents, and use the degree of care of a prudent person in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Collateral Documents and the
Trustee need perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming in all material respects to the requirements
of this Indenture and the Collateral Documents. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform in all material respects to the requirements of this Indenture and
the Collateral Documents.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
48
(i) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture before
or following the occurrence of any Event of Default at the request of any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
Subject to TIA (S) 315:
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
49
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have requested such action in accordance
with this Indenture and have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction.
(g) Except with respect to Sections 4.01 and 4.02 hereof, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article Four hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.01(a), 6.01(b) and 6.01(d) hereof or (ii) any
Default of Event of Default of which a Responsible Officer of the Trustee shall
have received written notification from the Company, any Holder, the Collateral
Agent, the Bank Agent or the Banks or obtained actual knowledge.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company with the same rights
it would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest (as defined under the TIA) it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture, the Collateral Documents or the
Notes, it shall not be accountable for the Company's use of the proceeds from
the Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture or the Collateral Documents, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee as set forth in Section 7.02(g),
the Trustee shall mail to Holders of Notes, at the Company's expense, a notice
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold the notice if and so
long as the Trustee in good faith determines that withholding the notice is in
the interests of the Holders of the Notes. The Trustee shall comply with TIA
(S) 315(b).
50
Section 7.06. Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each August 1 beginning with the August 1
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA (S) 313(a) (but if no
event described in TIA (S) 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA (S) 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA (S) 313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange, if any, on which the Notes are listed in accordance with TIA (S)
313(d). The Company shall promptly notify the Trustee when and if the Notes are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder in
accordance with a written schedule provided by the Trustee to the Company. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company shall indemnify the Trustee for, and hold it harmless
against, any and all losses, liabilities or expenses incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture and the Collateral Documents, including the costs and expenses of
enforcing this Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel, but the fees and expenses of such counsel shall be at the expense
of the Trustee unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall have
timely failed to assume the defense of the Trustee or to employ counsel for the
Trustee, or (iii) the named parties to any such action (including any impleaded
parties) include both the Trustee and the Company, and the Trustee shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company or that the Trustee has one or more interests that conflict with those
of the Company. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. The provisions of
this Section 7.07(b) shall survive payment of the Notes and any resignation,
removal or replacement of the Trustee.
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(c) The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
(d) When the Trustee incurs expenses or renders services after an
Event of Default specified in Sections 6.01(h) and 6.01(i) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
(e) The Trustee shall comply with the provisions of TIA (S) 313(b)(2)
to the extent applicable.
(f) The Trustee's right to receive payment of any amount due under
this Section 7.07 shall not be subordinate to any other liability or
Indebtedness of the Company (even though the Notes may be so subordinated). Such
right shall survive the satisfaction and discharge of this Indenture.
Section 7.08. Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment and taking of office as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of Notes
of a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee
or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. For up to one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes may
by written action appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of Notes of at least
52
10% in principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided such corporation shall be otherwise eligible and qualified under this
Article.
Section 7.10. Eligibility; Disqualification.
(a) There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50.0
million as set forth in its most recent annual report of condition.
(b) This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA
(S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent provided therein.
53
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate delivered to the Trustee, at
any time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes and cured all existing Events of Default, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in clauses (i) and
(ii) below, and to have satisfied all its other obligations under such Notes and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes to receive
solely out of the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due from the trust
referred to in Section 8.04 hereof, (ii) the Company's obligations with respect
to the Notes under Article 2 and Section 4.02 hereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee, and the Company's obligations in
connection therewith and (iv) this Article Eight. Subject to compliance with
this Article Eight, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 5.01 hereof with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders of the Notes (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit
54
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(d) through 6.01(f) hereof shall
not constitute Events of Default.
Section 8.04. Conditions To Legal or Covenant Defeasance.
(a) The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium,
if any, and interest on the outstanding Notes on the stated maturity or on
the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a particular
redemption date;
(ii) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an opinion of counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the Issue Date, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion of counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(iii) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an opinion of counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from
55
bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance will 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;
(vi) the Company must have delivered to the Trustee an opinion of
counsel 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;
(vii) 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 Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(viii) the Company must deliver to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
(a) Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
(c) Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
56
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after such principal,
premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
Section 8.08. Collateral.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to either Section 8.02 or 8.03, the Collateral, except the funds in
the trust fund described in Section 8.04 hereof, shall be released pursuant to
Section 10.04 hereof; provided, however, if at any time after such release the
Company's obligations under this Indenture and the Notes shall be revived and
reinstated pursuant to Section 8.07 hereof, then the Company shall immediately
take all steps necessary to cause the Collateral Documents to be re-recorded
pursuant to Section 10.02 hereof to create and maintain, as security for the
Obligations of the Company under this Indenture and the Notes, valid and
enforceable, perfected first priority Liens in and on all the Collateral, in
favor of the Collateral Agent for the benefit of the Trustee, for the further
benefit of the Holders of the Notes, and for the benefit of the Banks under the
New Credit Agreement, superior to and prior to the rights of all third persons,
and subject to no other Liens, other than as provided herein and therein.
57
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
(a) Notwithstanding Section 9.02 hereof, without the consent of any Holder
of Notes, the Company and the Trustee together may amend or supplement this
Indenture, the Notes or the Collateral Documents:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(iii) to provide for the assumption of the Company's obligations to
the Holders of the Notes in the case of a merger or consolidation pursuant
to Article 5 hereof;
(iv) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any such Holder of Notes;
(v) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(vi) to enter into additional or supplemental Collateral Documents, to
correct or amplify the description of the Collateral or to assure or convey
and confirm better unto the Collateral Agent any property subject or
required or intended to be subject to the Liens created by the Collateral
Documents or to subject any additional property to the Lien created by the
Collateral Documents.
(b) Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such amended
or supplemental Indenture, Notes or Collateral Documents, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of any amended or supplemental Indenture,
Notes or Collateral Documents authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture, Notes or Collateral Documents that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
(a) Except as provided below in this Section 9.02 or elsewhere in this
Indenture, the Company and the Trustee may amend or supplement this Indenture,
the Notes or the Collateral Documents with the consent of the Holders of at
least a majority in principal amount of all of the Notes then outstanding
(including consents obtained in connection with a tender offer or
58
exchange offer for Notes) and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture, the Notes or the Collateral
Documents may be waived with the consent of the Holders of a majority in
principal amount of all of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
(b) Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such amended
or supplemental Indenture, Notes or Collateral Documents, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company in the
execution of such amended or supplemental Indenture, Notes or Collateral
Documents, unless such amended or supplemental Indenture, Notes or Collateral
Documents affects the Trustee's own rights, duties or immunities under this
Indenture, the Notes, the Collateral Documents or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental Indenture, Notes or Collateral Documents.
(c) It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
(d) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture, Notes or Collateral Documents or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal
amount of the Notes then outstanding may waive compliance in a particular
instance with any provision of this Indenture, the Notes or the Collateral
Documents. However, without the consent of each Holder affected, an amendment or
waiver may not (with respect to any Notes held by a nonconsenting Holder of
Notes):
(i) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Note or alter or waive any of the provisions with respect to the redemption
provisions of the Notes (other than Sections 3.09, 4.10 and 4.16 hereof);
(iii) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(iv) waive a Default or Event of Default in the payment of principal
of, premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the
59
Holders of at least a majority in aggregate principal amount of the Notes
then outstanding and a waiver of the payment default that resulted from
such acceleration);
(v) make any Note payable in money other than that stated in the
Notes;
(vi) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest on the Notes;
(vii) waive a redemption payment with respect to any Note (other
than Sections 3.09, 4.10 and 4.16 hereof);
(viii) release the Lien of the Collateral Agent in any of the
Collateral other than pursuant to the terms of this Indenture or the
Collateral Documents; or
(ix) make any change in Section 6.04 or Section 6.07 hereof or in the
foregoing amendment and waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture, the Notes and the
Collateral Documents shall be set forth in an amended or supplemental Indenture
or Collateral Document that complies with the TIA as then in effect, if
applicable.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
(a) The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
(b) Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture, Note or
Collateral Document, if necessary, authorized pursuant to this Article Nine if
the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an amendment
or supplemental Indenture, Note or Collateral Document until the Board of
Directors approves it. In executing any amended or supplemental Indenture, Note
or Collateral Document, if necessary, the Trustee shall be entitled to receive
and (subject to Section 7.01) shall be fully protected in relying upon, an
Officer's Certificate and an Opinion of Counsel, which Opinion of Counsel may be
subject to customary assumptions and exclusions, stating that the execution of
such amended or supplemental Indenture, Note or Collateral Document is
authorized or permitted by this Indenture.
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01. Collateral and Security.
The due and punctual payment of the principal of and interest on the Notes
when and as the same shall be due and payable, whether on an interest payment
date, at maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent permitted by
law), if any, on the Notes and performance of all other Obligations of the
Company to the Holders or the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, shall be secured as provided
herein and in the Collateral Documents. Each Holder, by its acceptance of a
Note, consents and agrees to the terms hereof and of the Collateral Documents
(including, without limitation, the provisions providing for foreclosure and
release of Collateral) as the same may be in effect or may be amended from time
to time in accordance with the terms thereof and hereof and authorizes and
directs the Trustee to enter into any of the Collateral Documents and to perform
its respective obligations and exercise its respective rights thereunder in
accordance therewith, and to provide instructions to the Collateral Agent
thereunder. The Company will do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions hereof and
of the Collateral Documents, to assure and confirm to the Trustee the security
interest in the Collateral contemplated hereby and by the Collateral Documents,
as from time to time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Notes secured hereby,
according to the intent and purposes herein expressed. The Company shall take
any and all actions reasonably required to cause the Collateral Documents to
create and maintain, as security for the Obligations of the Company under this
Indenture and the Notes, valid and enforceable, perfected first priority Liens
in and on all the Collateral, in favor of the Collateral Agent for the benefit
of the Trustee, for the further benefit of the Holders of the Notes, and for the
benefit of the Banks under the New Credit Agreement, superior to and prior to
the rights of all third persons, and subject to no other Liens, other than as
provided herein and therein.
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Section 10.02. Recording, Etc.
(a) The Company will cause, at its own expense, the Collateral Documents,
this Indenture and all amendments or supplements thereto, to be registered,
recorded and filed or re-recorded, re-filed and renewed in such manner and in
such place or places, if any, as may be required by law in order fully to
preserve and protect the Liens created hereby and by the Collateral Documents.
(b) The Company shall furnish to the Trustee promptly after the execution
and delivery of this Indenture an Opinion of Counsel either (i) stating that in
the opinion of such counsel, assuming the taking of certain actions with respect
to the recording, registering and filing of this Indenture, financing statements
or other instruments, the Lien intended to be created by the Collateral
Documents will become effective, and reciting the details of such action, or
(ii) stating that, in the opinion of such counsel, no such action is necessary
to make such Lien effective.
(c) The Company shall furnish to the Trustee within 30 days after each
anniversary of the date of this Indenture, an Opinion of Counsel, dated as of
such date, stating either that (i) in the opinion of such counsel, all action
has been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of this Indenture and all supplemental indentures,
financing statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Collateral Documents and
reciting the details of such action or (ii) in the opinion of such Counsel, no
such action is necessary to maintain such Lien.
Section 10.03. Protection of the Trust Estate.
The Trustee shall have the power to enforce the obligations of the Company
and its Subsidiaries under this Indenture or the Collateral Documents, to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Collateral under any of the Collateral Documents
and in the profits, rents, revenues and other income arising therefrom,
including the power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair any Collateral or be prejudicial to the interests of the Holders or the
Trustee, to the extent permitted thereunder.
Section 10.04. Release of Lien.
(a) Collateral may be released from the Lien and security interest
created by this Indenture and the Collateral Documents at any time or from time
to time in accordance with the provisions of the Collateral Documents and as
provided hereby.
(b) The release of any Collateral from the terms of this Indenture and
the Collateral Documents will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms hereof and thereof. To the extent
applicable, the Company and any other obligor shall cause TIA (S) 314(d)
relating to the release of property from the Lien arising out of the Collateral
62
Documents to be complied with. Any certificate or opinion required by TIA (S)
314(d) may be made by an Officer of the Company; provided, however, that to the
extent required by TIA (S) 314(d), any such certificate or opinion shall be made
by an independent engineer, appraiser or other expert (as such terms are set
forth in TIA (S) 314(d)), who is not an Affiliate of the Company.
(c) Whenever Collateral is to be released pursuant to this Section 10.04,
the Trustee will execute any reasonable document or termination statement
necessary to release the Lien of this Indenture and Collateral Documents.
Section 10.05. Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.
Each Holder, by acceptance of a Note, authorizes and directs the Trustee
to enter into the Collateral Documents to which the Trustee is a party. The
Trustee may, in its sole discretion and without the consent of the Holders, on
behalf of the Holders, take all actions it deems necessary or appropriate in
order to (a) enforce any of the terms of the Collateral Documents and (b)
collect and receive any and all amounts payable in respect of the Obligations of
the Company hereunder. The Trustee shall have power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
the Collateral Documents or this Indenture, and such suits and proceedings as
the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or of the Trustee).
Section 10.06. Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Collateral Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture.
Section 10.07. Collateral Agent.
The Trustee may, from time to time, appoint one or more collateral agents
and may delegate to such collateral agent or agents any one or more of the
duties or rights of the Trustee hereunder or under the Collateral Documents or
that are specified in any Collateral Documents, including without limitation,
the right to hold any Collateral in the name of, registered to, or in the
physical possession of, such collateral agent, for the ratable benefit of the
Holders of the Notes. Each such collateral agent shall have such rights and
duties as may be specified in an agreement between the Trustee and such
collateral agent. The Trustee and any collateral agent shall be authorized
hereunder to give any acknowledgment reasonably requested by any party under the
Intercreditor Agreement to confirm the rights and obligations of the parties
under the
63
Intercreditor Agreement. IBJ Schroder Bank & Trust Company shall initially act
as the Collateral Agent hereunder and under the Collateral Documents pursuant to
the Intercreditor Agreement.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA (S) 318(c), the imposed duties shall control.
Section 11.02. Notices.
(a) Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, California 94088-3453
Attention: General Counsel
With a copy to:
Bronson, Bronson & McKinnon LLP
505 Montgomery Street
San Francisco, California 94111
Attention: Victor Bacigalupi, Esq.
If to the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Corporate Trust Department
(b) The Company or the Trustee, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
(c) All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business
64
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next-day delivery.
(d) Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
(f) If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 11.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA
(S) 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied; and
(iii) any certificate or opinion of an independent public accountant
selected by the Trustee in the exercise of reasonable care, pursuant to,
and to the extent required by, TIA (S) 314(c)(3).
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
65
(i) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Notes, this Indenture, the Collateral Documents, as applicable, or for
any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes.
Section 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE CHOICE OF LAW RULES THEREOF.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. Successors.
All agreements of the Company in this Indenture and the Notes, as
applicable, shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.
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Section 11.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signature pages follow]
67
SIGNATURES
Dated as of August 1, 1996 ADVANCED MICRO DEVICES, INC.
By: /s/ Marvin D. Burkett
---------------------
Name: Marvin D. Burkett
Title: Senior Vice President, Chief
Financial & Administrative
Officer and Treasurer
Dated as of August 1, 1996 United States Trust Company of New York,
Trustee
By: /s/ Albert J. Edwards
--------------------------------
Name: Albert J. Edwards
Title: Vice President
EXHIBIT A
---------
(Face of Note)
11% Senior Secured Note due 2003
Cusip No. 007903 AB3
No. R-__ $___,000,000
ADVANCED MICRO DEVICES, INC.
promises to pay to CEDE & CO
or registered assigns,
the principal sum of ____Hundred Million
Dollars ($___,000,000) on August 1, 2003.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Dated: August 13, 1996
ADVANCED MICRO DEVICES, INC.
[SEAL] By: /s/ Marvin Burkett
----------------------
Name: Marvin Burkett
Title: Senior Vice President, Chief
Financial and Administrative
Officer and Treasurer
By: /s/ Thomas M. McCoy
----------------------
Name: Thomas M. McCoy
Title: Vice President, General Counsel
and Secretary
This is one of the Notes
referred to in the within-
mentioned Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:__________________________________
Authorized Signatory
(Back of Note)
11% SENIOR SECURED NOTE
DUE 2003
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) ("DTC"), to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
may be requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]/1/
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. Advanced Micro Devices, Inc., a Delaware corporation (or
any successor thereto as provided in the Indenture, the "Company"), promises to
pay interest at the rate of 11% per annum of the principal amount of this Note
(the "Interest") from the Issue Date to the date of payment of such principal
amount of this Note. Installments of Interest shall become due and payable
semi-annually in arrears on February 1 and August 1 to the holder of record at
the close of business on the immediately preceding January 15 or July 15
(whether or not a Business Day). Additionally, installments of accrued and
unpaid Interest shall become due and payable with respect to any principal
amount of this Note that matures (whether at stated maturity, upon acceleration,
upon maturity of repurchase obligation or otherwise) upon such maturity of such
principal amount of this Note. Interest on this Note shall be computed on the
basis of a 360-day year, consisting of twelve 30-day months. Each installment
of Interest shall be calculated to accrue from and including the most recent
date to which Interest has been paid or provided for (or from and including the
Issue Date if no installment of Interest has been paid) to, but not including,
the date of payment.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the January 15 or July 15 immediately preceding the
Interest Payment Date, even if such Notes are cancelled after such record date
and on or before such Interest Payment Date (the "Record Date"), except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Holder hereof must surrender this Note to a Paying Agent to collect
principal payments. The Notes shall be payable both as to principal and
interest at the office or agency of the Company maintained for such purpose
within the City and State of New York or, at the option of the Company, payment
of interest may be made by check mailed to the Holders of Notes at their
respective addresses set forth in the register of Holders of Notes; provided,
- -------------------------
1. This paragraph should be included only for Notes issued in global form.
however, that all payments with respect to the Global Note and definitive Notes
the Holders of which have given wire transfer instructions to the Company at
least 10 Business Days prior to the applicable payment date shall be made by
wire transfer of immediately available funds to the accounts specified by the
Holders thereof. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. Paying Agent and Registrar. Initially, United States Trust Company of
New York, (including any successor appointed under the Indenture, the "Trustee")
the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture and Collateral Documents. The Company issued the Notes
under an Indenture dated as of August 1, 1996 (as it may be amended from time to
time, the "Indenture") by and between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb) (the "TIA"), as in effect on the Issue Date. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the TIA for a statement of such terms. The Notes are obligations of the
Company. The terms of the Indenture shall govern any inconsistencies between
the Indenture and the Notes. The Notes are secured by certain collateral
pursuant to the Collateral Documents referred to in the Indenture and that may
be released pursuant to the terms thereof.
5. Optional Redemption. As set forth in Section 3.07 of the Indenture,
the Notes are not redeemable at the Company's option prior to August 1, 2001
(the "First Optional Redemption Date"). From and after the First Optional
Redemption Date, the Notes shall be subject to redemption at the option of the
Company, in whole or in part, 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, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on August 1 of the years indicated below:
Year Percentage
---- ----------
2001 .................................. 105.500%
2002 .................................. 102.275%
Any redemption pursuant to Section 3.07 of the Indenture shall be made
pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. Mandatory Redemption. Except as set forth in paragraph 7 below,
the Company shall not be required to make mandatory redemptions or sinking fund
payments prior to maturity with respect to the Notes.
7. Repurchase at Option of Holder. Under certain circumstances, as
provided in the Indenture, the Company may be required to purchase all or a
portion of the Notes. Holders of Notes that are subject to an offer to purchase
shall receive an offer to purchase from
the Company prior to any related purchase date, and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, it need not
exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. Persons Deemed Owners. Prior to due presentment to the Trustee
for registration of the transfer of this Note, the Trustee, any Agent or the
Company may deem and treat the Person in whose name this Note is registered as
its absolute owner for the purpose of receiving payment of principal of and
interest on this Note and for all other purposes whatsoever, whether or not this
Note is overdue, and neither the Trustee, any Agent, nor the Company shall be
affected by notice to the contrary. The registered holder of a Note shall be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Notes or the Collateral Documents may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of all of the Notes then outstanding (including any consents obtained in
connection with a tender offer or exchange offer for the Notes), and any
existing default or compliance with any provision of the Indenture, the Notes or
the Collateral Documents may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Company and the Trustee together may amend or
supplement the Indenture, the Notes or the Collateral Documents to cure any
ambiguity, defect or inconsistency, to comply with Section 5.01 of the
Indenture, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA or to enter into
additional or supplemental Collateral Documents.
12. Defaults and Remedies. Events of Default include: default in the
payment of interest on the Notes when the same becomes due and payable and such
default continues for a
period of 30 days; default in the payment of principal of or premium, if any, on
the Notes when the same becomes due and payable at maturity, upon redemption
(including in connection with an offer to purchase) or otherwise; failure to
observe or perform any covenant, condition or agreement on the part of the
Company to be observed or performed pursuant to Sections 4.07, 4.09, 4.10 and
4.16 of the Indenture; failure to comply with any of their other respective
agreements or covenants in, or provisions of, the Notes or the Indenture and the
Default continues for 60 days after notice from the Trustee or the Holders of at
least 25% in principal amount of the Notes then outstanding; default or event of
default under the New Credit Agreement or 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 Issue Date, which default (a) is caused by a failure to pay
principal of or premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default'') or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10.0 million or more; a final
judgment or final judgments for the payment of money entered by a court or
courts of competent jurisdiction against the Company or any of its Restricted
Subsidiaries and such judgments are not paid, discharged or stayed for a period
of 30 days, provided that the aggregate of all such undischarged judgments
exceeds $50.0 million; material breach by the Company of any representation or
warranty set forth in the Collateral Documents, or material default by the
Company in the performance of any covenant set forth in the Collateral
Documents, or repudiation by the Company of its obligations under the Collateral
Documents or the unenforceability of the Collateral Documents against the
Company for any reason; and certain events of bankruptcy or insolvency with
respect to the Company, the FASL Unrestricted Subsidiary or any Significant
Subsidiary or any group of Subsidiaries (not including the Dresden, Germany
Unrestricted Subsidiary) that, taken as a whole, would constitute a Significant
Subsidiary If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, with respect to the Company, the FASL Unrestricted
Subsidiary or any Significant Subsidiary or group of Subsidiaries (not including
the Dresden, Germany Unrestricted Subsidiary) that, taken as a whole, would
constitute a Significant Subsidiary, all outstanding Notes will become due and
payable without further action or notice. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
Solely for purposes of calculating "Directing Creditors" pursuant to the terms
of the Intercreditor Agreement, the Holders of a majority in aggregate principal
amount of the then outstanding Notes may delegate instructional authority under
the Intercreditor Agreement to any committee of such Holders, in which event
such Holders shall be deemed to represent 100% of the Credit Class (as defined
in the Intercreditor Agreement) representing the Notes. The Trustee may withhold
from Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest.
If an Event of Default occurs on or after August 1, 2001 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 of the Indenture, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything herein or in the Indenture to the contrary
notwithstanding. If an Event of Default occurs prior to August 1, 2001 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding the prohibition on redemption of the
Notes prior to such date, then, upon acceleration of the Notes, an additional
premium shall also become and be immediately due and payable in an amount, for
each of the years beginning on August 1, of the years set forth below, as set
forth below (expressed as a percentage of principal amount):
Year Percentage
---- ----------
1996 ........................ 11.000%
1997 ........................ 9.900%
1998 ........................ 8.800%
1999 ........................ 7.700%
2000 ........................ 6.600%
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest on, or the principal of, the Notes. The Company is required to deliver
to the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required upon becoming aware of any Default or Event of Default,
to deliver to the Trustee a statement specifying such Default or Event of
Default.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, the Indenture, the
Collateral Documents, as applicable, or for any claim based on, in respect of,
or by reason of such obligations or their creation. Each holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. Additional Rights of Holders. In addition to the rights provided to
Holders of Notes under the Indenture, Holders shall have all the rights set
forth in the Collateral Documents.
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. Additional Information. Any Holder of the Notes or prospective
investor may obtain a copy of the Indenture and the Collateral Documents without
charge by writing to the Company at the following address:
Advanced Micro Devices
One AMD Place
Sunnyvale, California 94088
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:____________________
Your Signature:_______________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.16 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.16 of the Indenture, state the
amount you elect to have purchased: $___________
Date: Your Signature:
----------- -------------------------------
(Sign exactly as your name appears on the Note)
Tax Identification No.:
--------------------
Signature Guarantee.
SCHEDULE OF EXCHANGES OF CERTIFICATED SECURITIES/2/
The following exchanges of a part of this Global Note for Certificated
Securities have been made:
Principal
Principal Amount of Signature
Amount of Amount of this Gobal of
decrease in increase in Note authorized
Principal Principal following officer of
Amount of Amount of such Trustee or
Date of this this decrease Note
Exchange Global Note Gobal Note (or increase) Custodian
--------- ----------- ------------ ------------ ----------
____________________
2. To be included only for Senior Notes issued in global form.