LIMITED WAIVER
LIMITED WAIVER (this "Limited Waiver"), dated as of October 29, 2003, to
that certain Guarantee Agreement, dated as of March 15, 2001 (the "Guarantee
Agreement"), by and among Elan Corporation, plc (the "Guarantor") and the
Purchasers. Capitalized terms not defined herein have the meanings assigned to
them in the Guarantee Agreement and the Note Purchase Agreement.
W I T N E S S E T H :
WHEREAS, Elan Capital Corp., Ltd., a Bermuda exempted company limited by
shares, is a direct, wholly-owned Subsidiary of the Guarantor ("ECC");
WHEREAS, Elan International Services, Ltd., a Bermuda exempted company
limited by shares, is a wholly-owned Subsidiary of the Guarantor ("EIS");
WHEREAS, Elan Finance Corporation, Ltd., a Bermuda exempted company limited
by shares, is a wholly-owned Subsidiary of the Guarantor ("EFC");
WHEREAS, EFC issued Liquid Yield Option Notes due 2018 (the "▇▇▇▇▇")
pursuant to an Indenture, dated as of December 14, 1998, by and among EFC, the
Guarantor, as guarantor, and the Bank of New York, as trustee (the "▇▇▇▇▇
Indenture");
WHEREAS, the Guarantor has requested that the Purchasers waive compliance
with certain provisions of the Guarantee Agreement;
WHEREAS, the written consent of the Required Holders is required to effect
this Limited Waiver; and
WHEREAS, the Required Holders have agreed to the Guarantor's request upon
the terms and conditions set forth in this Limited Waiver.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Limited Waiver. Subject to the terms and conditions set forth
herein, compliance with Section 7.4 of the Guarantee Agreement is hereby waived
solely to the extent necessary to permit:
(a) the issuance (the "Securities Offering"), at par, by ECC of not less
than $250,000,000 in aggregate principal amount of Convertible Guaranteed Debt
Securities (the "Securities") and the guarantee of the Securities by the
Guarantor, in each case:
(i) pursuant to, and, subject to the limitations set forth in, the
performance by ECC and the Guarantor of their respective obligations under,
an Indenture by and among ECC, as issuer, the Guarantor, as guarantor, and
The Bank of New York, as trustee, in the form attached hereto as Exhibit A
(the "Indenture"), except for (x) changes in provisions of the Indenture
solely to include information related to the pricing, date of issuance and
date of maturity (which shall not be earlier than October 1, 2008) of the
Securities and (y) any other change that does not adversely affect the
interests of the holders of the Notes; and
(ii) in connection with the transactions contemplated by the ▇▇▇▇▇
Repurchase (as defined below) under the terms and conditions set forth in
this Limited Waiver (subject to the provisos set forth in Sections 3(d) and
7(b));
(b) the issuance by the Guarantor of the ECC/Elan Note (as defined below);
(c) the issuance by EIS of the First Elan/EIS Note and the Second Elan/EIS
Note (each, as defined below); and
(d) the performance by the Guarantor of its obligations under a Funding
Agreement by and between the Guarantor and ECC in the form attached hereto as
Exhibit B, except for changes solely to include certain dates and information
related to the pricing and aggregate principal amount of the Securities.
Section 2. Conditions Precedent. This Limited Waiver shall become effective
upon the satisfaction in full of each of the following conditions precedent:
(a) The Guarantor shall have consummated the offering and sale of at least
30,000,000 Ordinary Shares, par value 5 Euro cents per share (the "Ordinary
Shares"), pursuant to an offering of Ordinary Shares consisting of initially
30,000,000 Ordinary Shares and an additional 5,000,000 Ordinary Shares to cover
any over-allotments (the "Share Offering");
(b) The Guarantor shall have loaned the net proceeds from the Share
Offering to EIS, which loan shall have been evidenced by a note issued by EIS in
the form attached hereto as Exhibit C (the "First Elan/EIS Note"), except for
changes solely to include certain dates and amounts;
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(c) The representations and warranties contained in Section 4 shall be true
and correct in all material respects;
(d) The Guarantor shall have delivered a certificate of an officer of the
Guarantor certifying that each of the conditions set forth in this Section 2
(other than those set forth in Sections 2(e) and (f)) have been satisfied;
(e) Counterparts of this Limited Waiver shall have been executed by each of
the Required Holders; and
(f) Each holder of the Notes shall have received its pro rata portion of
the Waiver Fee (as defined below).
Section 3. Conditions Subsequent. The effectiveness of this Limited Waiver
is subject to the satisfaction in full of each of the following conditions
subsequent:
(a) No later than December 12, 2003, EIS shall have used the proceeds of
the First Elan/EIS Note solely to repay, in part, amounts outstanding under an
existing inter-company subordinated note held by EFC solely for the purpose of
enabling EFC to repurchase any ▇▇▇▇▇ tendered by the holders thereof in
connection with the December 14, 2003 "Purchase Date" (as defined in the ▇▇▇▇▇
Indenture) or to purchase any ▇▇▇▇▇ prior to December 14, 2003, provided that:
(i) none of the Guarantor, any of its Subsidiaries or any Person
acting on behalf of the Guarantor or any of its Subsidiaries shall have
conducted any solicitation of the holders of the ▇▇▇▇▇ in connection with
such purchase; and
(ii) the purchase price per $1,000 principal amount at maturity of any
▇▇▇▇▇ so purchased may not exceed $616.57 (collectively, the repurchase or
purchase of ▇▇▇▇▇ under the foregoing terms and conditions, the "▇▇▇▇▇
Repurchase");
(b) No later than the fifth business day following the consummation of the
Securities Offering, ECC shall have loaned the gross proceeds from the
Securities Offering to the Guarantor, which loan shall have been evidenced by a
note issued by the Guarantor in the form attached hereto as Exhibit D (the
"ECC/Elan Note"), except for changes solely to include certain dates and
amounts;
(c) No later than the tenth business day following the consummation of the
Securities Offering, the Guarantor shall have loaned the proceeds of the
ECC/Elan Note to EIS, which loan shall have been evidenced by one or more notes
issued by EIS in the form attached hereto as Exhibit E (collectively, the
"Second Elan/EIS Note"), except for changes solely to include certain dates and
amounts;
3
(d) No later than December 12, 2003, EIS shall have used the proceeds of
the Second Elan/EIS Note solely to the extent necessary to repay, in part,
amounts outstanding under an existing inter-company note held by, to make a
capital contribution to, or to purchase additional common shares issued by, EFC,
in any case, solely for the purpose of enabling (and in an amount not in excess
of the amount required by) EFC to effect the ▇▇▇▇▇ Repurchase (after giving
effect to the application of the net proceeds from the Share Offering as
provided in Sections 2(b) and 3(a)), provided that any net proceeds from the
Securities Offering not required to effect the ▇▇▇▇▇ Repurchase may be used by
the Guarantor and its Subsidiaries for general corporate purposes; and
(e) No later than December 15, 2003, the Guarantor shall have delivered a
certificate of an officer of the Guarantor certifying that each of the
conditions set forth in this Section 3 have been satisfied.
Section 4. Representations and Warranties. In order to induce the Required
Holders to enter into this Limited Waiver, the Guarantor represents and warrants
to each of the Required Holders that:
(a) The Guarantor has the corporate power and authority to execute this
Limited Waiver and to perform its obligations hereunder. This Limited Waiver and
the performance by the Guarantor of its obligations hereunder have been duly
authorized by all necessary corporate action on the part of the Guarantor. This
Limited Waiver has been duly executed and delivered by the Guarantor and,
assuming due execution and delivery by the other parties hereto, constitutes a
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms.
(b) ECC is a company organized under the laws of Bermuda and a direct,
wholly-owned Subsidiary of the Guarantor. ECC was incorporated in Bermuda on
September 24, 2003 for the sole purpose of the Securities Offering. ECC has
never conducted any business or held any assets except to the extent (i)
necessary to consummate the Securities Offering and perform its obligations
under the Indenture and the Securities or (ii) required by law to maintain its
existence. ECC has never suffered any lien to exist or incurred any indebtedness
(it being understood that legal and administrative expenses and the fees and
expenses relating to the Securities Offering, in each case, incurred by ECC,
shall not be deemed indebtedness for purposes hereof).
(c) After giving effect to this Limited Waiver, no Default or Event of
Default has occurred and is continuing.
Section 5. Waiver Fee. Contemporaneously with the effectiveness of this
Limited Waiver, the Guarantor shall pay a fee in an amount equal to 2.0% (or, if
the Share Offering resulted in the sale of less than 35 million Ordinary Shares,
2.5%) of the aggregate principal amount of the Notes (the "Waiver Fee") on a pro
rata basis to all
4
holders of the Notes (irrespective of whether any such holder has consented to
this Limited Waiver).
Section 6. Compliance with Laws. The Share Offering and the Securities
Offering have been made and will be made in compliance with the requirements of
the Securities Act of 1933, as amended, the Securities Act of 1934, as amended,
the respective rules and regulations of the Securities and Exchange Commission
thereunder, and all other applicable law. The offering documentation, if any,
relating to the Share Offering and to the Securities Offering do not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which such statements were made, not
misleading.
Section 7. Use of Proceeds.
(a) The Guarantor shall cause EFC to use the proceeds of the First Elan/EIS
Note solely to effect the ▇▇▇▇▇ Repurchase.
(b) The Guarantor shall cause (i) EIS to use the proceeds of the Second
Elan/EIS Note solely to the extent necessary to repay, in part, amounts
outstanding under an existing inter-company note held by, to make a capital
contribution to, or to purchase additional common shares issued by, EFC, and
(ii) EFC to use such proceeds solely to effect the ▇▇▇▇▇ Repurchase (after
giving effect to the application of the net proceeds from the Share Offering as
provided in Sections 2(b) and 3(a)), provided that any net proceeds from the
Securities Offering not required to effect the ▇▇▇▇▇ Repurchase may be used by
the Guarantor and its Subsidiaries for general corporate purposes.
Section 8. Ratification of Agreement. Except as expressly set forth in this
Limited Waiver, the terms, provisions and conditions of the Guarantee Agreement
are unchanged, and the Guarantee Agreement shall remain in full force and effect
and is hereby confirmed and ratified. The execution, delivery and effectiveness
of this Limited Waiver shall not, except as expressly provided herein, operate
as a waiver or amendment of any right, power or remedy of any Purchaser under
any of the Finance Documents, or constitute a waiver or amendment of any
provision of any of the Finance Documents. The Guarantor ratifies and confirms
that the Guarantee is in full force and effect after giving effect to this
Limited Waiver.
Section 9. Costs, Expenses and Taxes. The Guarantor agrees to pay all costs
and expenses (including the reasonable fees and disbursements of Debevoise &
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇ Corporate Finance LLC) incurred by the Purchasers in
connection with the preparation, execution and delivery of this Limited Waiver
and the other instruments and documents to be delivered hereunder, if any, in
accordance with the terms of Section 9.1 of the Guarantee Agreement. In
addition, the Guarantor agrees to pay or reimburse
5
any and all stamp, documentary or similar taxes payable or determined to be
payable by any Required Holder in connection with the execution and delivery of
this Limited Waiver and the other instruments and documents to be delivered
hereunder, if any, in accordance with Section 9.2 of the Guarantee Agreement.
Section 10. Execution in Counterparts. This Limited Waiver may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Limited Waiver
by telecopier shall be effective as delivery of a manually executed counterpart
of this Limited Waiver.
Section 11. Governing Law. This Limited Waiver shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice of law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
6
IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
ELAN CORPORATION, plc
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
[SIGNATURE BLOCKS FOR REQUIRED HOLDERS]
7
MONUMENTAL LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
LIFE INVESTORS INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED
STATES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Investment Officer
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
FIDELITY AND GUARANTY LIFE INSURANCE COMPANY
By: ▇▇▇▇▇▇ Asset Management Company,
its investment advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Investment Officer
▇▇▇▇▇▇ Asset Management Company
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
KENSINGTON INTERNATIONAL LIMITED
By: Elliot International Capital Advisors
Inc. as attorney-in fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
SPRINGFIELD ASSOCIATES, L.L.C.
By: ELLIOT ASSOCIATES, L.P., as managing member
By: Elliot Capital Advisors, L.P., as general
partner
By: ▇▇▇▇▇▇▇ Associates, Inc., as general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
ERIE INDEMNITY COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
& Chief Investment Officer
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
ERIE FAMILY LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
& Chief Investment Officer
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
ERIE INSURANCE EXCHANGE
By: Erie Indemnity Company,
as Attorney-in fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
& Chief Investment Officer
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director-Fixed Income
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director-Fixed Income
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Investment Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
C.M. LIFE INSURANCE
COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as Investment
Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
BAYSTATE HEALTH SYSTEMS INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as Investment
Adviser
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
NEW YORK LIFE INSURANCE COMPANY
By: /s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Investment Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: New York Life Investment
Management LLC, Its Investment
Manager
By: /s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Investment Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
HARTFORD LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors,
L.P. (as Investment Advisor)
By: Prudential Private Placement Investors,
Inc. (as its General Partner)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
PRUCO LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
▇▇▇▇▇▇ INVESTORS LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors,
L.P. (as Investment Advisor)
By: Prudential Private Placement Investors,
Inc. (as its General Partner)
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
SUN LIFE ASSURANCE COMPANY OF CANADA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, U.S. Private
Placements - For President
By: /s/ ▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
Title: Senior Counsel - For Secretary
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, U.S. Private
Placements - For President
By: /s/ ▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
Title: Senior Counsel - For Secretary
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth opposite its name on Annex
A hereto.
AG CAPITAL FUNDING PARTNERS, L.P.
---------------------------------
[Name of Purchaser]
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth below.
SILVER OAK CAPITAL LLC
---------------------------------
[Name of Purchaser]
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth below.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC
---------------------------------
[Name of Purchaser]
FOR ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ VALUE PARTNERS L.P.
By: /s/ ▇▇▇▇▇▇ ▇. Bouciter Jr.
----------------------------
Name: ▇▇▇▇▇▇ ▇. Bouciter Jr.
Title: Managing Director
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth below.
MW POST ADVISORY GROUP
---------------------------------
[Name of Purchaser]
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth below.
THE BAUPOST GROUP SECURITIES, L.L.C.
------------------------------------
[Name of Purchaser]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
The above-referenced institution is the beneficial
holder of Series B and/or Series C Guaranteed
Note(s) issued by Elan Pharmaceutical Investment
III, Ltd. as set forth below.
8
EXHIBIT A
INDENTURE
ELAN CAPITAL CORP., LTD.,
as Issuer,
ELAN CORPORATION, PLC,
as Guarantor,
and
THE BANK OF NEW YORK,
as Trustee
________________
INDENTURE
________________
Dated as of [*], 2003
[ ]% Convertible Guaranteed Debt Securities
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions...............................................1
Section 1.2. Other Defined Terms......................................13
Section 1.3. Compliance Certificates and Opinions.....................14
Section 1.4. Form of Documents Delivered to Trustee...................14
Section 1.5. Acts of Holders..........................................15
Section 1.6. Notices, etc. to Trustee, Company and Guarantor..........16
Section 1.7. Notice to Holders of Securities; Waiver..................17
Section 1.8. Language of Notices......................................17
Section 1.9. Effect of Headings and Table of Contents.................17
Section 1.10. Successors and Assigns...................................17
Section 1.11. Separability Clause......................................17
Section 1.12. Benefits of Indenture....................................18
Section 1.13. Governing Law............................................18
Section 1.14. Legal Holidays...........................................18
Section 1.15. Counterparts.............................................18
Section 1.16. Judgment Currency........................................18
Section 1.17. No Security Interest Created.............................19
Section 1.18. Limitation on Individual Liability.......................19
Section 1.19. Submission to Jurisdiction...............................19
Section 1.20. Enforcement of Certain Provisions........................20
Section 1.21. Waiver of Jury Trial.....................................20
ARTICLE 2
SECURITIES IN GLOBAL FORM
Section 2.1. Reserved.................................................20
Section 2.2. Reserved.................................................20
Section 2.3. Securities in Global Form................................20
ARTICLE 3
THE SECURITIES
Section 3.1. Form.....................................................22
Section 3.2. Currency; Denominations..................................22
Section 3.3. Execution, Authentication, Delivery and Dating...........22
Section 3.4. Restrictive Legends......................................24
Section 3.5. Registration, Transfer and Exchange......................25
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.........28
Section 3.7. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved..............................................29
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Section 3.8. Persons Deemed Owners....................................30
Section 3.9. Cancellation.............................................30
Section 3.10. Computation of Interest..................................31
Section 3.11. ISIN/CUSIP Numbers.......................................31
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
Section 4.1. Satisfaction and Discharge...............................31
Section 4.2. Defeasance and Covenant Defeasance.......................32
Section 4.3. Application of Trust Money...............................35
Section 4.4. Repayment to Company or Guarantor........................35
Section 4.5. Limitation on Satisfaction and Discharge and Defeasance..35
ARTICLE 5
REMEDIES
Section 5.1. Events of Default........................................35
Section 5.2. Acceleration of Maturity; Rescission and Annulment.......37
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................38
Section 5.4. Trustee May File Proofs of Claim.........................39
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities.............................................40
Section 5.6. Application of Money Collected...........................40
Section 5.7. Limitations on Suits.....................................40
Section 5.8. Unconditional Right of Holders To Receive Principal
and Any Premium, Interest and Additional Amounts.......41
Section 5.9. Restoration of Rights and Remedies.......................41
Section 5.10. Rights and Remedies Cumulative...........................41
Section 5.11. Delay or Omission Not Waiver.............................41
Section 5.12. Control by Holders of Securities.........................42
Section 5.13. Waiver of Past Defaults..................................42
Section 5.14. Waiver of Usury, Stay or Extension Laws..................42
Section 5.15. Undertaking for Costs....................................42
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee................................43
Section 6.2. Notice of Defaults.......................................45
Section 6.3. Not Responsible for Recitals or Issuance of Securities...46
Section 6.4. May Hold Securities......................................46
Section 6.5. Money Held in Trust......................................46
Section 6.6. Compensation and Reimbursement...........................46
Section 6.7. Corporate Trustee Required; Eligibility..................47
Section 6.8. Resignation and Removal; Appointment of Successor........47
Section 6.9. Acceptance of Appointment by Successor...................49
Section 6.10. Merger, Conversion, Consolidation or Succession to
Business...............................................50
Section 6.11. Appointment of Authenticating Agent......................50
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Section 6.12. Appointment of Co-Trustee................................51
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
Section 7.1. Company and Guarantor To Furnish Trustee
Names and Addresses of Holders.........................52
Section 7.2. Preservation of Information; Communications to Holders...52
Section 7.3. Reports by the Trustee to Holders........................52
Section 7.4. Reports..................................................53
ARTICLE 8
CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.....53
Section 8.2. Successor Person Substituted for Company.................54
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms...54
Section 8.4. Successor Person Substituted for Guarantor...............55
ARTICLE 9
SUPPLEMENTAL INDENTURES; WAIVERS
Section 9.1. Without Consent of Holders...............................56
Section 9.2. With Consent of Holders..................................57
Section 9.3. Execution of Supplemental Indentures, Etc................58
Section 9.4. Effect of Waivers and Supplemental Indentures............58
Section 9.5. Reference in Securities to Supplemental Indentures.......58
Section 9.6. Revocation and Effect of Consents........................58
Section 9.7. Notice of Supplemental Indenture or Waiver...............59
Section 9.8. Supplemental Indentures and Waivers Requiring Consents
of EPIL Holders........................................59
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, Any Premium, Interest and
Additional Amounts.....................................59
Section 10.2. Maintenance of Office or Agency; Registrar, Paying
Agent and Conversion Agent.............................59
Section 10.3. Money for Securities Payments To Be Held in Trust........60
Section 10.4. Limitation on Liens......................................61
Section 10.5. Limitation on Sale and Leaseback Transactions............62
Section 10.6. Corporate Existence......................................63
Section 10.7. Reserved.................................................63
Section 10.8. Company Statement as to Compliance; Notice of Certain
Defaults...............................................63
Section 10.9. Guarantor Statement as to Compliance; Notice of Certain
Defaults...............................................64
Section 10.10. Additional Amounts.......................................64
Section 10.11. Limitation on Certain Amendments, Modifications and
Supplements............................................66
Section 10.12. Limitation on Disposition of Guarantor Intercompany
Note...................................................67
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Section 10.13. Limitation on Retirement of Indebtedness.................67
Section 10.14. Limitation on Dividends and Stock Repurchases............68
Section 10.15. Limitation on Asset Sales................................68
Section 10.16. Limitation on Activities of the Company..................68
Section 10.17. Limitation on Investments in the Company.................68
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Reserved.................................................69
Section 11.2. Election To Redeem; Notice to Trustee....................69
Section 11.3. Selection of Securities To Be Redeemed...................69
Section 11.4. Notice of Redemption.....................................69
Section 11.5. Deposit of Redemption Price..............................70
Section 11.6. Securities Redeemed......................................71
Section 11.7. Securities Redeemed in Part..............................71
Section 11.8. Redemption for Tax Reasons...............................71
Section 11.9. Redemption at the Option of the Company..................72
ARTICLE 12
RESERVED
ARTICLE 13
REDEMPTION AT THE OPTION OF HOLDERS UPON
CHANGE OF CONTROL
Section 13.1. Purchase of Securities at Option of the Holder upon
Change of Control......................................72
Section 13.2. Effect of Change of Control Purchase Notice.............75
Section 13.3. Deposit of Change of Control Purchase Price..............76
Section 13.4. Securities Purchased in Part.............................76
Section 13.5. Compliance with Securities Laws upon Purchase of
Securities.............................................77
Section 13.6. Repayment to the Guarantor...............................77
ARTICLE 14
RESERVED
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called................77
Section 15.2. Call, Notice and Place of Meetings.......................77
Section 15.3. Persons Entitled To Vote at Meetings.....................78
Section 15.4. Quorum; Action...........................................78
Section 15.5. Determination of Voting Rights; Conduct and Adjournment
of Meetings............................................79
Section 15.6. Counting Votes and Recording Action of Meetings..........79
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ARTICLE 16
SUBORDINATEd GUARANTEE AND INDEMNITY
Section 16.1. The Guarantee............................................80
Section 16.2. Net Payments.............................................80
Section 16.3. Guarantee Unconditional, etc.............................82
Section 16.4. Reinstatement............................................82
Section 16.5. Subrogation..............................................82
Section 16.6. Indemnity................................................82
ARTICLE 17
SUBORDINATION
Section 17.1. Guarantee Obligations Subordinated to Guarantor Senior
Debt...................................................83
Section 17.2. No Payment When Guarantor Senior Debt in Default.........83
Section 17.3. Guarantee Obligations Subordinated to Prior Payment of
All Guarantor Senior Debt on Dissolution, Liquidation
or Reorganization of the Guarantor.....................84
Section 17.4. Payments May Be Paid Prior to Dissolution................85
Section 17.5. Holders To Be Subrogated to Rights of Holders of
Guarantor Senior Debt..................................85
Section 17.6. Guarantee Obligations of the Guarantor Unconditional.....85
Section 17.7. Reliance on Judicial Order or Certificate of
Liquidating Agent......................................86
Section 17.8. Subordination Right Not Impaired by Acts or Omissions of the
Guarantor or Holders of Guarantor Senior Debt..........86
Section 17.9. Holders Authorize Trustee To Effect Subordination of
Guarantee Obligations..................................86
Section 17.10. No Payment on Securities When Guarantor Senior Debt
in Default.............................................87
Section 17.11. Payments May Be Paid Prior to EPIL Default...............87
Section 17.12. Right Not Impaired by Acts or Omissions of the Company
or Holders of Guarantor Senior Debt....................88
Section 17.13. This Article 17 Not To Prevent Events of Default.........88
Section 17.14. Amendments or Modifications to Article 17................88
Section 17.15. No Fiduciary Duty of Trustee to Holders of Senior Debt...88
Section 17.16. Conversions Not Impaired.................................89
ARTICLE 18
CONVERSION
Section 18.1. Conversion Right.........................................89
Section 18.2. Conversion Procedure.....................................91
Section 18.3. Fractional Ordinary Shares and ADSs......................92
Section 18.4. Taxes on Conversion......................................92
Section 18.5. Guarantor To Provide Stock...............................92
Section 18.6. Adjustment for Change in Capital Stock...................93
Section 18.7. Adjustment for Rights Issue..............................93
Section 18.8. Adjustment for Other Distributions.......................94
Section 18.9. Adjustment for Share Purchase............................95
Section 18.10. Adjustment upon Change of Control........................96
Section 18.11. Upward Adjustment at the Option of the Guarantor.........96
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Section 18.12. When Adjustment May Be Deferred..........................97
Section 18.13. When No Adjustment Required..............................97
Section 18.14. Notice of Adjustment.....................................97
Section 18.15. Notice of Certain Transactions...........................98
Section 18.16. Reorganization of Company; Special Distributions.........98
Section 18.17. Guarantor Determination Final............................99
Section 18.18. Trustee's Adjustment Disclaimer..........................99
Section 18.19. Simultaneous Adjustments.................................99
Section 18.20. Successive Adjustments...................................99
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF GUARANTEE
-vi-
INDENTURE, dated as of [*], 2003 (the "Indenture"), among ELAN CAPITAL
CORP., LTD., a Bermuda exempted company limited by shares (hereinafter called
the "Company"), having its principal executive office located at ▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 04 Bermuda, ELAN CORPORATION, plc, a public limited
company organized under the laws of Ireland (hereinafter called the
"Guarantor"), having its principal executive office at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (hereinafter called the "Trustee"), having its Corporate
Trust Office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its [ ]% Convertible Guaranteed Debt
Securities (hereinafter called the "Securities"), unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times, and to
have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Guarantee and the indemnity
provided for herein. All things necessary to make this Indenture a valid
agreement of the Guarantor, in accordance with its terms, have been done and all
things necessary to provide for the issuance of Shares (as defined herein) upon
conversion of Securities in accordance with the terms of this Indenture have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as defined herein) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(3) any action that the Guarantor or the Company is prevented from
taking "directly or indirectly" under this Indenture includes, without
limitation, any such action taken on behalf of
the Guarantor or the Company by any of the Subsidiaries or Affiliates of
the Guarantor or the Company;
(4) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both," not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"AAA-rated country" means any country having, on any date of determination,
a credit rating of AAA from Standard & Poor's Rating Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc. and its successors, or Aaa from ▇▇▇▇▇'▇ Investors Service,
Inc. and its successors.
"Additional Amounts" means any additional amounts which are required, by
Sections 10.10 and 16.2, to be paid by the Company or the Guarantor in respect
of certain taxes, fees, duties, assessments or governmental charges of whatever
nature imposed or levied on Holders specified therein and which are owing to
such Holders.
"ADR" or "ADRs" means American Depository Receipts issued by the Depository
representing ADSs.
"ADS" or "ADSs" means American Depository Shares, evidenced by ADRs, of the
Guarantor, issued from time to time by the Depository pursuant to the Deposit
Agreement, each such ADS representing one Ordinary Share as of the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Applicable Procedures" means, with respect to any conversion of, or
transfer or exchange of or for, beneficial interests in any Global Security, the
rules and procedures of Euroclear and Clearstream that apply to such conversion,
transfer or exchange at the relevant time.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other disposition by the Guarantor or any of its
Subsidiaries to any Person of property or assets of the Guarantor or any
Subsidiary of the Guarantor owned by the Guarantor or any of its Subsidiaries on
the Issue Date; provided, however, that an Asset Sale shall not include (i) any
sale, conveyance, transfer or disposition of securities issued by any Person
other than the Guarantor or any Subsidiary of the Guarantor, (ii) any sale or
discount, in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof, (iii) any sale, conveyance, transfer or disposition of cash
equivalents, (iv) any surrender or waiver of contract rights or the settlement,
release or surrender of contract, tort or other claims of any type, (v) any
grant, assignment or licensing in the ordinary course of business consistent
with past practice of patents, trademarks and similar intellectual property
rights, (vi) any disposal or replacement of obsolete or worn out equipment,
(vii) any conveyance,
-2-
transfer or lease of the properties and assets of the Guarantor as an entirety
or substantially as an entirety as permitted under Article 8, (viii) any sale,
conveyance, transfer or disposition of assets or property in the ordinary course
of business of the Guarantor or any of its Subsidiaries (such as sales of
inventory) and (ix) any sale, conveyance, transfer or other disposition of
assets or property between or among the Guarantor and any Subsidiary of the
Guarantor or between or among Subsidiaries of the Guarantor.
"Athena" means Athena Neurosciences Finance, LLC, a Delaware limited
liability company.
"Athena Indenture" means the Indenture, dated as of February 21, 2001, by
and among Athena, as issuer, the Guarantor, as guarantor, and The Bank of New
York, as trustee, as supplemented by the First Supplemental Indenture, dated as
of February 21, 2001, by and among Athena, as issuer, the Guarantor, as
guarantor, and The Bank of New York, as trustee, in each case, as may be
amended, modified or supplemented from time to time.
"Athena Notes" means the 7 1/4% Guaranteed Senior Notes due 2008 issued
from time to time pursuant to the Athena Indenture.
"Attributable Indebtedness," in respect of any sale and leaseback
transaction, means, as of the time of determination, the total obligation
(discounted to present value at the rate per annum equal to the discount rate
which would be applicable to a capital lease obligation with like term in
accordance with GAAP) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes, maintenance, repairs,
insurance, water rates and other items which do not constitute payments for
property rights) during the remaining portion of the initial term of the lease
included in the sale and leaseback transaction.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.11 to act on behalf of the Trustee to authenticate the Securities.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Authorized Officer" means, with respect to the Company or the Guarantor,
the Chief Executive Officer, the President, any Vice President, the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company
or the Guarantor, as applicable.
"Average Sale Price" means, on any date, the average of the Sale Prices of
the ADSs for the 30 consecutive Trading Days ending on the last full Trading Day
prior to such date.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person or any committee of that board duly authorized to act
generally or in any particular respect for such Person.
-3-
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors of the Company and to be in full force and effect on
the date of such certification, delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday or other day on
which banking institutions in the City of New York, London or Ireland are
authorized or obligated by law, regulation or executive order to close.
"Capital Stock" of any Person means any and all shares, interests, limited
liability company interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated)
equity of such Person, including Preferred Stock, but excluding any Indebtedness
convertible into such equity.
"Capitalized Lease Obligation" means an obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligation shall be the
capitalized amount of such obligation determined in accordance with such
principles.
"Cash Consideration" means, in connection with any transaction constituting
a Change of Control, any consideration other than Listed Equity Securities.
"Clearing Agency" means each of Euroclear and Clearstream, and together,
the "Clearing Agencies."
"Clearstream" means Clearstream Banking, societe anonyme, or its
successors.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under such Act, then the body performing such duties
at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by an Authorized
Officer, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets of
the Guarantor and its Subsidiaries (less applicable depreciation, amortization
and other valuation reserves) after deducting therefrom (i) all current
liabilities of the Guarantor and its Subsidiaries (other than intercompany
liabilities and Indebtedness for money borrowed having a maturity of less than
12 months from the date of the balance sheet of the Guarantor and its
consolidated Subsidiaries as of the end of the most recent fiscal quarter of the
Guarantor ending at least 45 days prior to the taking of any action for the
purpose of which such determination is being made (but which by its terms is
renewable or extendible beyond 12 months from such date at the option of the
borrower)) and (ii) all goodwill, trade names, patents, unamortized debt
discount and expense and any other like intangibles, all as set forth on such
balance sheet, prepared in accordance with GAAP.
-4-
"Conversion Agent" means any Person authorized by the Guarantor to convert
Securities on behalf of the Guarantor pursuant to Article 18.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor trustee.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, associations, companies and business trusts.
"Current Market Price" means, at a particular date, the arithmetical mean
of the Sale Prices of the ADSs for each of the five consecutive Trading Days
preceding and ending on the Trading Day immediately preceding such date. If no
such Sale Prices are available, the Current Market Price on such date shall be
the fair value of an Ordinary Share as reasonably determined in good faith by
the Board of Directors of the Guarantor, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officer's
Certificate of the Guarantor delivered to the Trustee.
"Deposit Agreement" means the Amended and Restated Deposit Agreement, dated
as of May 17, 1996, among the Guarantor, the Depository, as Depository, and the
holders from time to time of ADRs issued thereunder.
"Depository" means The Bank of New York, as Depository with respect to the
ADSs.
"Distribution Compliance Period" means the 40-day restricted period as
defined in Regulation S.
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"EFC" means Elan Finance Corporation, Ltd., a Bermuda limited company.
"Elan Funding Agreement" means the Funding Agreement, dated as of the Issue
Date, by and between the Guarantor and the Company.
"EPIL Agreements" means, collectively, the EPIL II Agreements, the EPIL III
Agreements and any EPIL Refinancing Agreements.
"EPIL Default" means (i) any event or condition the occurrence or existence
of which would, with the lapse of time or the giving of a notice or both, become
an event of default under any of the EPIL Agreements, (ii) any event of default
under any of the EPIL Agreements (including the acceleration of the maturity of
the EPIL II Notes, the EPIL III Notes or any series of EPIL Refinancing Notes)
or (iii) any acceleration of the maturity of the Securities.
"EPIL Indebtedness" means, collectively, all loans, advances, debts,
liabilities and monetary obligations evidenced by, or under or pursuant to, the
EPIL Notes or the EPIL Agreements, including, without limitation, all principal,
interest, premiums (including make-whole premiums), fees, charges and expenses.
-5-
"EPIL Notes" means, collectively, the EPIL II Notes, the EPIL III Notes and
any EPIL Refinancing Notes.
"EPIL Refinancing Agreements" means, collectively, the EPIL Refinancing
Notes and all agreements and documents pursuant to which the EPIL Refinancing
Notes were issued or delivered in connection with the EPIL Refinancing Notes.
"EPIL Refinancing Indebtedness" means (i) any Indebtedness (including,
without limitation, any guarantee) issued by the Guarantor or one or more of its
Subsidiaries in exchange for the EPIL II Notes or the EPIL III Notes and (ii)
any Indebtedness issued by the Guarantor or one or more of its Subsidiaries, of
which at least 90% in aggregate principal amount is issued to Persons who are,
at the time of such issuance, holders of EPIL II Notes or EPIL III Notes and the
net proceeds of which are used to refinance, renew, defease, refund or repay, in
whole or in part, the EPIL II Notes or the EPIL III Notes; provided that the
aggregate principal amount of any such newly-issued Indebtedness does not exceed
the principal amount of, all accrued interest on and all fees, charges, expenses
and premiums (including make-whole premiums) of, the EPIL II Notes or the EPIL
III Notes exchanged, or refinanced, renewed, defeased, refunded or repaid from
the net proceeds of, any such newly-issued Indebtedness.
"EPIL Refinancing Notes" means the notes or other instruments outstanding
from time to time evidencing any EPIL Refinancing Indebtedness.
"EPIL II" means Elan Pharmaceutical Investments II, Ltd., a Bermuda limited
company.
"EPIL II Agreements" means, collectively, the EPIL II Notes, the Note
Purchase Agreement, dated as of June 28, 2000, by and among EPIL II and the
purchasers whose names appear in the acceptance form at the end thereof, the
Guarantee Agreement, dated as of June 28, 2000, by and among the Guarantor and
the purchasers whose names appear in the acceptance form at the end thereof, and
the other agreements and documents delivered in connection therewith, in each
case, as may be amended, modified or supplemented from time to time.
"EPIL II Notes" means the 9.56% Guaranteed Notes due June 28, 2004
outstanding on the Issue Date issued from time to time by EPIL II in the
original aggregate principal amount of $450 million and guaranteed by the
Guarantor, as may be amended, modified or supplemented from time to time.
"EPIL III" means Elan Pharmaceutical Investments III, Ltd., a Bermuda
limited company.
"EPIL III Agreements" means, collectively, the EPIL III Notes, the Note
Purchase Agreement, dated as of March 15, 2001, by and among EPIL III and the
purchasers whose names appear in the acceptance form at the end thereof, the
Guarantee Agreement, dated as of March 15, 2001, by and among the Guarantor and
the purchasers whose names appear in the acceptance form at the end thereof, and
the other agreements and documents delivered in connection therewith, in each
case, as may be amended, modified or supplemented from time to time.
"EPIL III Notes" means the Series B and Series C Guaranteed Notes due March
15, 2005 outstanding on the Issue Date issued from time to time by EPIL III in
the original aggregate principal amount of $390 million and guaranteed by the
Guarantor, as may be amended, modified or supplemented from time to time.
"Euroclear" means Euroclear S.A./N.V., as operator of the Euroclear System,
or its successors in such capacity.
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"European Union country" means any member country of the European Union as
of the date of this Indenture, not including Greece or Portugal.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing EPIL Agreements" means, collectively, the EPIL II Agreements and
the EPIL III Agreements.
"Existing EPIL Indebtedness" means, collectively, all loans, advances,
debts, liabilities and monetary obligations evidenced by, or under or pursuant
to, the Existing EPIL Notes or the Existing EPIL Agreements, including, without
limitation, all principal, interest, premiums (including make-whole premiums),
fees, charges and expenses.
"Existing EPIL Notes" means, collectively, the EPIL II Notes and the EPIL
III Notes.
"Funded Indebtedness" means (i) all Indebtedness having a maturity of more
than 12 months from the date as of which the determination is made or having a
maturity of 12 months or less but by its terms is renewable or extendible beyond
12 months from such date at the option of the borrower; and (ii) rental
obligations payable more than 12 months from the date as of which the
determination is made under leases which are capitalized in accordance with GAAP
(such rental obligations to be included as Funded Indebtedness at the amount so
capitalized as of such date of determination).
"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 may be approved by a significant segment of the accounting
profession of the United States, which are in effect from time to time.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America, where the payment or payments thereunder are
supported by the full faith and credit of such government or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, where the timely payment or payments thereunder
are unconditionally guaranteed as a full faith and credit obligation by the
United States of America, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a 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 Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
"Guarantee" means the unconditional guarantee of the payment of the
principal of, any premium or interest on and any Additional Amounts with respect
to the Securities by the Guarantor, as more fully set forth in Article 16.
"Guarantee Obligations" means all obligations of every nature of the
Guarantor from time to time owing to the Holders and the Trustee under this
Indenture and the Securities (including its
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Guarantee), whether for principal, premium, interest, Additional Amounts, fees,
penalties, expenses, indemnities, damages or otherwise.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor Intercompany Note" means the promissory note dated the date
hereof issued by the Guarantor to the Company in the principal amount of $[ ].
"Guarantor Request" and "Guarantor Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Guarantor by an
Authorized Officer and delivered to the Trustee.
"Guarantor Senior Debt" means, with respect to the Guarantor, all
liabilities for all loans, advances, debts and monetary obligations of every
nature, including, without limitation, obligations to pay principal, premium
(including, without limitation, make-whole premium), interest (including
interest accruing subsequent to the filing of a petition initiating any
proceeding pursuant to any bankruptcy law at the rate provided for in the
documents with respect thereto, whether or not such interest is an allowable
claim under applicable law), fees, penalties, expenses, indemnities, damages and
other amounts under (i) the Guarantor's guarantee of the EPIL II Notes pursuant
to the terms of the EPIL II Agreements, (ii) the Guarantor's guarantee of the
EPIL III Notes pursuant to the terms of the EPIL III Agreements and (iii) the
Guarantor's obligations under any EPIL Refinancing Indebtedness.
"Guarantor's Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Guarantor to have
been duly adopted by the Guarantor's Board of Directors and to be in full force
and effect on the date of such certification, delivered to the Trustee.
"Holder" means the Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, (i) the principal of and
any premium and interest on (a) indebtedness of such Person for money borrowed
and (b) indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable; (ii)
all Capitalized Lease Obligations of such Person; (iii) all obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business); (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through (iii) above)
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit); (v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable as obligor,
guarantor or otherwise; (vi) all obligations of the type referred to in clauses
(i) through (v) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and (vii) any
amendments, modifications, refundings, renew-
-8-
als or extensions of any indebtedness or obligation described as Indebtedness in
clauses (i) through (vi) above.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Interest" means interest payable on the Securities and includes Additional
Amounts.
"Interest Payment Date" with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Investment" by any Person in any other Person means any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account of others), or
any purchase or acquisition by such Person of Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, such
other Person; provided, however, that an Investment shall not include any
Investment pursuant to the terms of the Elan Funding Agreement, so long as such
Investment is not otherwise then prohibited by Article 17.
"ISIN/CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Service, CUSIP Service Bureau.
"Issue Date" means the date of the first issuance of Securities under this
Indenture.
"Legal Holiday" means any day that is not a Business Day.
"Lien" means any mortgage, pledge, lien, security interest or other
encumbrance.
"Listed Equity Securities" means common equity securities traded on a
European or United States national securities exchange or quoted on the Nasdaq
National Market System.
"▇▇▇▇▇" means the Liquid Yield Option Notes due 2018 issued from time to
time pursuant to the ▇▇▇▇▇ Indenture.
"▇▇▇▇▇ Indenture" means the Indenture, dated as of December 14, 1998, by
and among EFC, as issuer, the Guarantor, as guarantor, and The Bank of New York,
as trustee, as may be amended, modified or supplemented from time to time.
"Market Value" means, with respect to any Listed Equity Security at any
particular date, the volume weighed average trading prices of such Listed Equity
Security for the five consecutive Trading Days preceding and ending on the
Trading Day immediately preceding such date on the principal United States
securities exchange or the Nasdaq National Market System on which such Listed
Equity Security is then listed or admitted for trading, as applicable, or, if
such Listed Equity Security is not then listed or admitted for trading on a U.S.
national or regional securities exchange or on the Nasdaq National Market
System, the volume weighted average prices of such Listed Equity Security for
the five consecutive Trading Days preceding and ending on the Trading Day
immediately preceding such date on the principal European securities exchange on
which such Listed Equity Security is then listed or admitted for trading.
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"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Obligations" means all obligations of every nature of the Company from
time to time owing to the Holders and the Trustee under this Indenture and the
Securities, whether for principal, premium, interest, Additional Amounts, fees,
penalties, expenses, indemnities, damages or otherwise.
"Office" or "Agency", with respect to any Securities, means an office or
agency of the Company and the Guarantor maintained or designated in a Place of
Payment for such Securities pursuant to Section 10.2 or any other office or
agency of the Company and the Guarantor maintained or designated for such
Securities pursuant to Section 10.2 or, to the extent designated or required by
Section 10.2 in lieu of such office or agency, the Corporate Trust Office of the
Trustee.
"Officer's Certificate" means a certificate signed by an Authorized Officer
that is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or the Guarantor, as the case may be, or
other counsel who shall be reasonably acceptable to the Trustee.
"Ordinary Shares" means the ordinary shares of Capital Stock of the
Guarantor, par value (euro).05 per share.
"Outstanding", when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar
for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 4.2) with the Trustee or any Paying Agent
(other than the Guarantor or any of its Affiliates) in trust for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company or the
Guarantor has effected defeasance pursuant to the terms hereof, except to
the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there shall
have been presented to the Trustee proof satisfactory to it that such
Security is held by a bona fide purchaser in whose hands such Security is a
valid obligation of the Company; and
(e) any such Security converted as contemplated by this Indenture;
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provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, Securities owned by the
Company, the Guarantor or any other obligor upon the Securities or any Affiliate
of the Company, the Guarantor or such other obligor, shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which shall have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee (A) the pledgee's right so to act with respect to
such Securities and (B) that the pledgee is not the Company, the Guarantor or
any other obligor upon the Securities or an Affiliate of the Company, the
Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal amount of, any premium or interest on, or any Additional Amounts with
respect to, the Securities.
"Person" means any individual, Corporation, partnership, joint venture,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means the place or places where the principal of, or any
premium or interest on, or any Additional Amounts with respect to, the
Securities are payable as provided in or pursuant to this Indenture and the
Securities.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security.
"Preferred Stock" in respect of any Corporation means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Corporation, over shares of Capital Stock of
any other class of such Corporation.
"Principal Property" means any contiguous or proximate parcel of real
property owned by, or leased to, the Guarantor or any of the Restricted
Subsidiaries, and any equipment located at or comprising a part of any such
property, having a gross book value (without deduction of any depreciation
reserves) as of the date of determination, in excess of 1.0% of Consolidated Net
Tangible Assets.
"Redemption Date", with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", with respect to any Security or portion thereof to be
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to Article 11.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date therefor means the date, if any, specified in such
Security as the "Regular Record Date".
"Regulation S" means Regulation S promulgated under the Securities Act, as
it may be amended from time to time, and any successor provision thereto.
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"Relevant Taxing Jurisdiction" means, when used in or with respect to
Section 10.10, the jurisdictions set forth in clauses (i), (ii) and (iii) of the
first paragraph of Section 10.10, and, when used in or with respect to Section
16.2, the jurisdictions set forth in clauses (i), (ii) and (iii) of the first
paragraph of Section 16.2.
"Required EPIL Holders" means, at any date, (i) the holders of a majority
in aggregate principal amount outstanding at such date of the EPIL II Notes,
(ii) the holders of a majority in aggregate principal amount outstanding at such
date of the EPIL III Notes and (iii) the holders of a majority in aggregate
principal amount outstanding at such date of each series of EPIL Refinancing
Notes.
"Required Existing EPIL Holders" means, at any date, (i) the holders of a
majority in aggregate principal amount outstanding at such date of the EPIL II
Notes and (ii) the holders of a majority in aggregate principal amount
outstanding at such date of the EPIL III Notes.
"Responsible Officer" means any vice president, any assistant vice
president, any assistant treasurer, or any trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject
and who shall have direct responsibility for the administration of this
Indenture.
"Restricted Subsidiary" means any subsidiary of the Guarantor which owns or
leases a Principal Property.
"Sale Price" means, at any date, the volume weighted average trading prices
of the ADSs on the New York Stock Exchange or the Nasdaq National Market System,
as applicable, on such date, or, if the ADSs are not listed or admitted for
trading on the New York Stock Exchange or the Nasdaq National Market System on
such date, the volume weighted average trading prices of the Ordinary Shares on
such date on the principal securities exchange on which the Ordinary Shares are
listed or admitted for trading on such date and, if the prices on such exchange
are quoted in a currency other than the U.S. dollar, such price shall be
converted into Dollars at the mid-market spot exchange rate as of the close of
business on the Business Day immediately preceding such date, as published in a
widely recognized source selected by the Guarantor.
"Security" or "Securities" means the notes, as amended or supplemented from
time to time in accordance with the terms hereof, authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Shares" means, at the option of the Holder, the ADSs or Ordinary Shares of
the Guarantor that will be delivered upon conversion of a Security.
"Special Record Date" for the payment of any Defaulted Interest on any
Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means, with respect to the principal amount of such Security, [ ],
2008, and with respect to interest or Additional Amounts on such Security, the
date established by or pursuant to this Indenture or such Security as the fixed
date on which such installment of interest is, or such Additional Amounts are,
due and payable.
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"Subsidiary" means, in respect of any Person, any Corporation, limited or
general partnership or other business entity of which at the time of
determination more than 50% of the voting power of the shares of its Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"Total Consideration" means, in connection with any Change of Control, the
value in U.S. dollars of all shares, securities, other instruments or other
assets issued or paid to the holders of Ordinary Shares in connection with such
Change of Control.
"Trading Day" means each day on which the securities exchange or quotation
system which is used to determine an Average Sale Price, a Current Market Price,
a Market Price or a Sale Price is open for trading or quotation.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such with respect to
the Securities pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean each Person who is then a Trustee hereunder.
"United States" or "U.S.", except as otherwise provided in or pursuant to
this Indenture or the Securities, means the United States of America (including
the states thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "Vice President".
Section 1.2. Other Defined Terms.
Defined in
Term Section
"Act"................................................ 1.5
"Alternate Offer".................................... 13.1(a)
"beneficial owner"................................... 13.1(a)
"beneficially own"................................... 13.1(a)
"beneficially owned"................................. 13.1(a)
"Cash Alternative"................................... 18.1
"Cash Alternative Payment"........................... 18.1
"Change of Control".................................. 13.1
"Change of Control Purchase Date".................... 13.1
"Change of Control Purchase Notice".................. 13.1(c)
"Change of Control Purchase Price"................... 13.1
"Common Depositary".................................. 2.3
"Conversion Date".................................... 18.2
"Conversion Price"................................... 11.9
"Conversion Ratio"................................... 18.1
"covenant defeasance"................................ 4.2(3)
"Defaulted Interest"................................. 3.7
"defeasance"......................................... 4.2(2)
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Defined in
Term Section
"Event of Default"................................... 5.1
"Expiration Time".................................... 18.9
"Global Security".................................... 2.3
"Judgment Currency".................................. 1.16
"New York Banking Day"............................... 1.16
"Notice of Default".................................. 5.1
"Purchased Shares"................................... 18.9
"Regulation S Global Security"....................... 2.3
"Regulation S Legend"................................ 3.4(ii)
"Relevant Date"...................................... 10.10
"Required Currency".................................. 1.16
"Required Holders"................................... 9.2
"Securities Act"..................................... 3.4(ii)
"Security Register".................................. 3.5
"Security Registrar"................................. 3.5
"Trust Indenture Act"................................ 6.7
Section 1.3. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee an Officer's Certificate of the
Company or the Guarantor, as applicable, stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
Section 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the
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opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon an Opinion of
Counsel; provided that such officer, after reasonable inquiry, has no reason to
believe and does not believe that the Opinion of Counsel with respect to the
matters upon which his certificate or opinion is based is erroneous. Any such
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company or the Guarantor, as the case may be, stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be; provided that such counsel, after reasonable
inquiry, has no reason to believe and does not believe that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or the Securities, they may, but need not, be
consolidated and form one instrument.
Section 1.5. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company or the Guarantor or both of them. Such instrument or instruments and any
such record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee, the Company and the Guarantor and any agent
of the Trustee, the Company or the Guarantor, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.5, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Clearing Agency
that is a Holder of a Global Security, may make, give or take, by a proxy or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a Clearing Agency that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security through such Clearing Agency's
standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any Global Security held by a
Clearing Agency entitled under the procedures of such Clearing Agency to make,
give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other Act provided
in or pursuant to this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
Act, whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, di-
-15-
rection, notice, consent, waiver or other Act shall be valid or effective if
made, given or taken more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such instrument
or writing referred to in this Section 1.5 may be proved in any reasonable
manner; and the Trustee may in any instance require further proof with respect
to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Security Register.
(4) If the Company or the Guarantor shall solicit from the Holders of any
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company or the Guarantor, as the case may be, may at
its option (but is not obligated to), by Board Resolution or Guarantor's Board
Resolution, as the case may be, fix in advance a record date for the
determination of Holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Securities shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(5) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent, the Guarantor or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 1.6. Notices, etc. to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Guarantor or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company or the Guarantor, as the case may be, by the Trustee
or any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company or the Guarantor, as the case may be,
addressed to the attention of its Treasurer, with a copy to the attention
of its General Counsel, at the address of its principal office specified in
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company or the Guarantor, as the
case may be.
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Section 1.7. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
such notice shall be sufficiently given to Holders of Securities if in writing
and mailed, first-class postage prepaid, to each Holder of a Security affected
by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. Such notice shall be deemed to
have been given when such notice is mailed.
As long as the Securities are listed on the Irish Stock Exchange, copies of
all notices given Holders shall be delivered to the Companies Announcements
Office of the Irish Stock Exchange.
In any case where notice to Holders of Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Security shall affect the sufficiency of such notice with
respect to other Holders of Securities. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided. In the case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.8. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company or the Guarantor, as the case may be, so
elects, any published notice may be in an official language of the country of
publication.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not. All covenants and
agreements in this Indenture by the Guarantor shall bind its successors and
assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or any Security shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof or thereof shall not in any way be affected or
impaired thereby.
-17-
Section 1.12. Benefits of Indenture.
Other than as expressly set forth in Section 1.20, nothing in this
Indenture or any Security, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.13. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
Section 1.14. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert Securities, shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security (other
than a provision in any Security that specifically states that such provision
shall apply in lieu hereof)) payment need not be made at such Place of Payment
on such date, and such Securities need not be converted on such date but such
payment may be made, and such Securities may be converted, on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity or on such last day for conversion, and no interest shall
accrue on the amount payable on such date or at such time for the period from
and after such Interest Payment Date, Stated Maturity, Maturity or last day for
conversion or exchange, as the case may be, to such next succeeding Business
Day. Section 1.15. Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 1.16. Judgment Currency.
The Company and the Guarantor each agrees, to the fullest extent that it
may effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of, or premium or interest, if any, or Additional
Amounts on the Securities (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the requisite amount of the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which a final unappealable judgment is given and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking
-18-
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to be closed.
Section 1.17. No Security Interest Created.
Nothing in this Indenture or in any Securities, express or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect in any
jurisdiction where property of the Company, the Guarantor or their respective
Subsidiaries is or may be located.
Section 1.18. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture or in any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, shareholder
(except in a shareholder's corporate capacity as Guarantor), member, officer,
director or employee, as such, past, present or future, of the Company or the
Guarantor, as the case may be, either directly or through the Company or the
Guarantor, as the case may be, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareholders, members, officers, directors or employees, as such, of the Company
or the Guarantor, as the case may be, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any Security or
implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, member, officer, director or manager, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Security.
Section 1.19. Submission to Jurisdiction.
The Company and the Guarantor each agrees that any judicial proceedings
instituted in relation to any matter arising under this Indenture or the
Securities may be brought in any United States federal or New York State court
sitting in the Borough of Manhattan, The City of New York, New York to the
extent that such court has subject matter jurisdiction over the controversy,
and, by execution and delivery of this Indenture, the Company and the Guarantor
each hereby irrevocably accepts, generally and unconditionally, the jurisdiction
of the aforesaid courts, acknowledges their competence and irrevocably agrees to
be bound by any judgment rendered in such proceeding. The Company and the
Guarantor each also irrevocably and unconditionally waives for the benefit of
the Trustee and the Holders of the Securities any immunity from jurisdiction and
any immunity from legal process (whether through service or notice, attachment
prior to judgment, attachment in the aid of execution, execution or otherwise)
in respect of this Indenture. The Guarantor hereby irrevocably designates and
appoints for the benefit of the Trustee and the Holders of the Securities for
the term of this Indenture CT Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on its behalf service of all process
(with a copy of all such service of process to be delivered to Corporate
Secretary, Elan Corporation, plc, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇) brought against it with respect to any such proceeding in any such
court in The City of New York, such service being hereby acknowledged by the
Guarantor to be effective and binding service on it in every respect whether or
not the Guarantor shall then be
-19-
doing or shall have at any time done business in New York. The Company hereby
irrevocably designates and appoints for the benefit of the Trustee and the
Holders of the Securities for the term of this Indenture CT Corporation System,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent to receive on its
behalf service of all process (with a copy of all such service of process to be
delivered to President, Elan Capital Corp., Ltd., ▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ 04 Bermuda) brought against it with respect to any such proceeding in
any such court in The City of New York, such service being hereby acknowledged
by the Company to be effective and binding service on it in every respect
whether or not the Company shall then be doing or shall have at anytime done
business in New York. Such appointments shall be irrevocable so long as any of
the Securities or the respective obligations of the Company and the Guarantor
hereunder remain outstanding, or until the appointment of a successor by the
Company or the Guarantor, as the case may be, and such successor's acceptance of
such appointment. Upon such acceptance, the Company or the Guarantor, as the
case may be, shall notify the Trustee of the name and address of such successor.
The Company and the Guarantor each further agrees for the benefit of the Trustee
and the Holders of the Securities to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue such designation and appointment of said CT Corporation
System, Inc., in full force and effect so long as any of the Securities or the
respective obligations of the Company and the Guarantor hereunder shall be
outstanding. The Trustee shall not be obligated and shall have no responsibility
with respect to any failure by the Company or the Guarantor to take any such
action. Nothing herein shall affect the right to serve process in any other
manner permitted by any law or limit the right of the Trustee or any Holder to
institute proceedings against the Company or the Guarantor in the courts of any
other jurisdiction or jurisdictions.
Section 1.20. Enforcement of Certain Provisions.
Sections 1.19, 1.21, 4.5, 9.8, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16 and
10.17, the fourth paragraph of Section 18.1, Article 17 and this Section 1.20
shall constitute a continuing offer to all Persons who become holders of, or who
continue to hold, Guarantor Senior Debt, and such provisions and each of the
definitions used therein are made for the benefit of the holders of Guarantor
Senior Debt and such holders are made obligees hereunder and any one or more of
them may enforce such provisions.
Section 1.21. Waiver of Jury Trial.
Each of the Company, Guarantor and the Trustee hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to the Indenture, the
Securities or the transaction contemplated hereby.
ARTICLE 2
SECURITIES IN GLOBAL FORM
Section 2.1. Reserved.
Section 2.2. Reserved.
Section 2.3. Securities in Global Form.
The Securities will be initially evidenced by a global certificate (a
"Global Security") in fully registered form. The Global Security will be duly
executed by the Company and authenticated by the Trustee and deposited with and
registered in the name of a common depositary (or its nominee) (the "Common
Depositary") for the Clearing Agencies. The Global Security initially evidencing
the Securities will bear the Regulation S Legend (such Global Security, the
"Regulation S Global Security").
-20-
As long as a Global Security evidencing the Securities is on deposit with
the Clearing Agencies or any of their respective successors, then:
(1) any holder wishing to acquire, hold or transfer an interest in respect
of the Securities must do so through an account with a Clearing Agency
or any of their respective successors or another securities
intermediary holding an equivalent interest in respect of the
Securities directly or indirectly through a clearing agency or any of
its successors;
(2) there will be one or more securities intermediaries standing between
each such accountholder and the underlying Securities;
(3) the Company, the Guarantor, the Trustee and any agent thereof will
have the right to treat the Clearing Agencies or their respective
successors or agents as the holders exclusively entitled to receive
interest and other payments or property in respect of or in exchange
for or upon conversion of the Securities (including the ADS or
Ordinary Shares issuable upon conversion of the Securities), and
otherwise to exercise all the rights and powers with respect to any
Security;
(4) the Company's and/or the Guarantor's obligation to make payments of
interest and principal and other amounts with respect to any Security
shall be discharged at the time payment in the appropriate amount is
made in accordance with the agency agreement to a clearing agency or
its successor or agent;
(5) the Guarantor's obligation to deliver ADSs or Ordinary Shares upon the
exercise by a Holder of its conversion rights shall be discharged at
the time (A) book entry positions representing such ADSs or Ordinary
Shares are delivered by the Trustee to a Clearing Agency or its
successor or agent in accordance with the Indenture or, as the case
may be, ADSs or Ordinary Shares are delivered by the Trustee on the
Guarantor's behalf to the Common Depositary for deposit in accordance
with the terms of the Indenture and the Deposit Agreement or (B) if
the Guarantor shall have exercised its right to pay a Cash
Alternative, such payment shall have been made to a Clearing Agency or
its successor or agent; and
(6) any Person that acquires, holds or transfers interests in respect of
any Security through accounts with a Clearing Agency or with any other
financial intermediary will be subject to the laws and contractual
provisions governing such Person's relationship with such financial
intermediary, as well as the laws and contractual provisions governing
the relationship between this financial intermediary and each other
financial intermediary, if any, standing between itself and the Global
Security evidencing the Securities and the register to determine (A)
the legal nature of its interest in respect of any Security and
whether such interest is protected against the insolvency of its
financial intermediary or any financial intermediary standing between
such investor and the underlying Securities and the Security Register,
(B) whether a Clearing Agency or its successor, and each other
securities intermediary, if any, standing between such Person and the
underlying Securities and the Security Register, is required to
enforce the payment and other terms of the Securities against the
Guarantor or to put its accountholders in a position to do so directly
and (C) whether such Person's financial intermediary and each
financial intermediary, if any, standing between such Person and the
under-
-21-
lying securities and the Security Register, is required to pass on to
such person the benefits of ownership of any Securities.
Subject to the conditions stated above, if any Global Security is exchanged
for physical certificates in fully registered form each evidencing a single
Security or less than the entire issue of Securities, then:
(1) the Company, the Guarantor, the Trustee and any agent thereof will
have the right to treat each registered Holder of Securities as the
Holder and person exclusively entitled to receive interest and other
payments or property in respect of, upon conversion of, or in exchange
for, the Securities, including the ADSs or Ordinary Shares, and
otherwise to exercise all the rights and powers with respect to any
security, subject to the provisions of applicable law;
(2) the Company's and/or Guarantor's obligation to make payments of
interest and principal and other amounts with respect to the
Securities shall be discharged at the time payment in the appropriate
amount is made in accordance with the provisions of this Indenture to
each such Holder; and
(3) the Company's and/or Guarantor's obligations to deliver ADSs or
Ordinary Shares upon the exercise by any Holder of Securities of its
conversion rights shall be discharged at the time the ADSs or Ordinary
Shares are delivered to such Holder of Securities.
ARTICLE 3
THE SECURITIES
Section 3.1. Form.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form set forth in Exhibit A, which constitutes a part of
this Indenture, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture.
Section 3.2. Currency; Denominations.
The principal of, any premium and interest on, payments due in respect of
the Cash Alternative or pursuant to Section 11.8, 11.9 or 13.1 hereof, and any
Additional Amounts with respect to the Securities shall be payable in Dollars.
Securities denominated in Dollars shall be issuable in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chief
Executive Officer, its President, its Treasurer or a Vice President under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
together with the corporate seal, may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company and
the Guarantor, notwithstanding that such
-22-
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of original issuance of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company, to the
Trustee for authentication and provided that the Board Resolution, Officer's
Certificate and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities have been
established in conformity with the provisions of this Indenture;
(b) all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities
when completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the
Company, delivered by duly authorized officers of the Company to the
Trustee for authentication pursuant to this Indenture, and
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium, arrangement,
fraudulent conveyance, fraudulent transfer or other similar laws
relating to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and will entitle the
Holders thereof to the benefits of this Indenture, including the
Guarantee; such Opinion of Counsel need express no opinion as to the
availability of equitable remedies; and
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with;
and
(2) Officer's Certificates of the Company and the Guarantor, in each
case stating that, to the best knowledge of the Persons executing such
certificate, all conditions precedent to the execution, authentication and
delivery of such Securities have been complied with, and no event which is,
or after notice or lapse of time would become, an Event of Default with
respect to any of the Securities shall have occurred and be continuing.
If all the Securities are not to be issued at one time, it shall not be
necessary to deliver an Opinion of Counsel and Officer's Certificates of the
Company and the Guarantor at the time of issuance of each Security, but such
opinion and certificates, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Security. After any such first
delivery, any separate written request by an Authorized Officer of the Company
or any person designated in writing by an Authorized Officer that the Trustee
authenticate and deliver the Securities for original issue will be deemed to be
a certification by the Company and the Guarantor that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with and that no Event of Default with
respect to any of the Securities has occurred or is continuing.
-23-
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Exhibit
A executed by or on behalf of the Trustee or by the Authenticating Agent by the
manual signature of one of its authorized officers. Such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Section 3.4. Restrictive Legends.
(i) Each Global Security shall bear the legend in substantially the
following form on the face thereof:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY NAMED
BELOW OR A NOMINEE OF THE DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED HEREIN AND IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THIS SECURITY AND THE INDENTURE. THE REGISTERED HOLDER HEREOF MAY BE TREATED BY
THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES. TRANSFERS OF BENEFICIAL INTERESTS OF PORTIONS OF THIS
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH SECTION 3.5 OF
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM, OR CLEARSTREAM
BANKING, SOCIETE ANONYME (EACH, A "DEPOSITORY"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CITIVIC NOMINEES LIMITED OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS
MADE TO CITIVIC NOMINEES LIMITED OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CITIVIC NOMINEES LIMITED, HAS AN INTEREST HEREIN.
-24-
(ii) The Regulation S Global Security shall bear the legend in
substantially the following form on the face thereof (the "Regulation S
Legend"):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF
OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) PURSUANT TO AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OR REGULATION S UNDER THE SECURITIES ACT OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE RIGHT OF EACH OF THE COMPANY, THE SECURITIES REGISTRAR AND
THE TRUSTEE, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C)
OR (D), TO REQUIRE DELIVERY OF A CERTIFICATE, OPINION OF COUNSEL OR OTHER
INFORMATION SATISFACTORY TO IT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACCEPTANCE
HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT
PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.
THE RIGHTS ATTACHING TO THIS SECURITY, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE
INDENTURE.
Section 3.5. Registration, Transfer and Exchange.
With respect to the Securities, if any, the Company shall cause to be kept
a register (each such register being herein sometimes referred to as the
"Security Register") at an Office or Agency for such Securities in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Securities and of transfers of the
Securities. Such Office or Agency shall be the "Security Registrar" for the
Securities. The Company hereby appoints the Trustee to act as the initial
Security Registrar for the Securities, as agent for the Company in maintaining
the Security Register. The Trustee hereby accepts such appointment as Security
Registrar, to act as agent of the Company in maintaining the Security Register.
The Company shall have the right to remove and replace from time to time the
Security Registrar; provided that no such removal or replacement shall be
effective until a
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successor Security Registrar shall have been appointed by the Company and shall
have accepted such appointment by the Company. In the event that the Trustee
shall not be or shall cease to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times. There shall be only one
Security Register. No transfer of Securities will be effective until such
transfer is recorded in the Security Register maintained by the Company or an
agent of the Company.
The Applicable Procedures contained in the "Operating Procedures of the
Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the
"General Terms and Conditions of Clearstream" and "Customer Handbook" of
Clearstream (or any successor document setting forth the procedures, terms
and/or conditions of Euroclear or Clearstream, as applicable) in effect at the
relevant time shall be applicable to transfers of beneficial interests in any
Regulation S Global Security that are held through Euroclear or Clearstream, as
applicable.
Upon surrender for registration of transfer of any Security at any Office
or Agency, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Securities may be exchanged for other
Securities containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at any Office or Agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the any other provision of this Indenture, a Global
Security shall be exchangeable for definitive Securities in fully registered
form only if: (i) any Clearing Agency is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days of the date the Company is so informed in writing,
(ii) the Company at its option and in its sole discretion executes and delivers
to the Trustee a Company Order to the effect that such Global Security shall be
so exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities, upon the request of the holder of a beneficial
interest in such Global Security. If the beneficial owners of interests in the
Global Security are entitled to exchange such interests for definitive
Securities as the result of an event described in clause (i), (ii) or (iii) of
the preceding sentence, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in such form and
denominations as are required by or pursuant to this Indenture, containing
identical terms and in aggregate principal amount equal to the principal amount
represented by the Global Security, executed by the Company. On or after the
earliest date on which such interests may be so exchanged, such Global Security
shall be surrendered from time to time by such Clearing Agency or such other
depository as shall be specified in the Company Order with respect thereto, and
in accordance with instructions given to the Trustee and such Clearing Agency,
as shall be specified in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or in part,
for definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered Global Security, a like aggregate principal amount of
definitive Securities of authorized denominations and of like tenor as the
portion of such Global Security to be exchanged; provided, however, that no such
exchanges may occur during a period beginning at
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the opening of business 15 days before any selection of Securities to be
redeemed and ending on the relevant Redemption Date. Promptly following any such
exchange in part, such Global Security shall be returned by the Trustee to the
relevant Clearing Agency, or such other depository referred to above in
accordance with the instructions of the Company referred to above. If a Security
is issued in exchange for any portion of a Global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such Global Security shall
be payable in accordance with the provisions of this Indenture.
Notwithstanding the other provisions of this Section 3.5 and Section 3.6, a
beneficial interest in the Regulation S Global Security may not be (A) exchanged
for a definitive Security or for an interest in a Global Security that does not
bear the Regulation S Legend prior to (1) the expiration of the Distribution
Compliance Period (unless such exchange is effected by the Company, does not
require an investment decision on the part of the holder thereof and does not
violate the provisions of Regulation S) and (2) the receipt by the Security
Registrar of any certificates identified by the Company or its counsel to be
required pursuant to Rule 903(b)(3)(B) under the Securities Act or (B)
transferred to a Person who takes delivery thereof in the form of a definitive
Security prior to the events set forth in clause (A) above or unless the
transfer is pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 903 or Rule 904.
Upon the transfer, exchange or replacement of Securities not bearing the
Regulation S Legend, the Trustee shall deliver Securities that do not bear the
Regulation S Legend. Upon the transfer, exchange or replacement of Securities
bearing the Regulation S Legend, the Trustee shall deliver only Securities that
bear the Regulation S Legend unless the Distribution Compliance Period has
expired.
By its acceptance of any Security bearing the Regulation S Legend, each
Holder of such Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Regulation S Legend and agrees
that it will transfer such Security only as provided in this Indenture. In
connection with any transfer of Securities, each Holder agrees by its acceptance
of the Securities to furnish the Trustee, the Security Registrar or the Company
such certifications, legal opinions or other information as any of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act; provided that the Trustee shall not be
required to determine (but may conclusively rely on a determination made by the
Company with respect to) the sufficiency of any such certifications, legal
opinions or other information.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor,
respectively, evidencing the same debt and entitling the Holders thereof to the
same benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Company or the Security
Registrar for such Security) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar for such Security duly executed by the Holder thereof or his attorney
duly authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 9.5 or 11.7 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of Securities under Section 11.4
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part, except in the case of any Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to issue, register the transfer of
or exchange any Security which, in accordance with its terms, has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the
provisions of this Section 3.6, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding.
If there be delivered to the Company, the Guarantor and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company, the Guarantor or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Security, a new
Security containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section 3.6, in case any
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section 3.6, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any
destroyed, lost or stolen Security shall constitute a separate obligation of the
Company and the Guarantor, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
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Section 3.7. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Security which shall be payable,
and are punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name such Security (or one or more Predecessor
Securities) is registered as of the close of business on the Regular Record Date
for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Security which shall be payable,
but shall not be punctually paid or duly provided for, on any Interest Payment
Date for such Security (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder thereof on the relevant Regular Record Date by
virtue of having been such Holder; and such Defaulted Interest may be paid by
the Company or the Guarantor, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Company or the Guarantor, as the case may be, may elect to
make payment of any Defaulted Interest to the Person in whose name such
Security (or a Predecessor Security thereof) shall be registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed by the Company in the following
manner. The Company or the Guarantor, as the case may be, shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on such Security, the Special Record Date therefor and the date of the
proposed payment, and at the same time the Company or the Guarantor, as the
case may be, shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when so deposited
to be held in trust for the benefit of the Person entitled to such
Defaulted Interest as in this clause provided. The Special Record Date for
the payment of such Defaulted Interest shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after notification to the Trustee of the proposed
payment. The Trustee shall, in the name and at the expense of the Company
or the Guarantor, cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class
postage prepaid, to the Holder of such Security (or a Predecessor Security
thereof) at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company or the Guarantor,
cause a similar notice to be published at least once in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Person in
whose name such Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company or the Guarantor, as the case may be, may make payment
of any Defaulted Interest in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Security may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company or the Guarantor, as the case may be, to the
Trustee of the proposed payment pursuant to this clause, such payment shall
be deemed practicable by the Trustee.
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Unless otherwise provided in or pursuant to this Indenture or the
Securities, at the option of the Company or the Guarantor, interest on
Securities that bear interest may be paid by mailing a check to the address of
the Person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States.
Subject to the foregoing provisions of this Section and Section 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which Security is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security with respect to which the Stated Maturity is prior to such
Interest Payment Date), interest with respect to which the Stated Maturity is on
such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence, in the case of any Security which is
converted, interest with respect to which the Stated Maturity is after the date
of conversion of such Security shall not be payable.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company or the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of, any premium and (subject to
Sections 3.5 and 3.7) interest on and any Additional Amounts with respect to
such Security and for all other purposes whatsoever, whether or not any payment
with respect to such Security shall be overdue, and none of the Company, the
Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a Clearing Agency shall have any rights under this Indenture with
respect to such Global Security, and such Clearing Agency may be treated by the
Company, the Guarantor, the Trustee, and any agent of the Company, the Guarantor
or the Trustee as the owner of such Global Security for all purposes whatsoever.
None of the Company, the Guarantor, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 3.9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee, and any such Securities, as well as
Securities surrendered directly to the Trustee for any such purpose, shall be
canceled promptly by the Trustee. The Company or the Guarantor may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company or the Guarantor may have acquired in
any manner whatsoever, and all Securities so delivered shall be canceled
promptly by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by or pursuant to this Indenture. All canceled Securities
held by the Trustee shall be disposed of by the Trustee in accordance with
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its customary procedures, unless by a Company Order or Guarantor Order, the
Company or the Guarantor, as the case may be, directs their return to it.
Section 3.10. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Section 3.11. ISIN/CUSIP Numbers.
The Company in issuing the Securities may use ISIN/CUSIP numbers (if then
generally in use), and, if so, the Trustee shall use ISIN/CUSIP numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the ISIN/CUSIP numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
Section 4.1. Satisfaction and Discharge.
Subject to Section 4.5, upon the direction of the Company by a Company
Order or of the Guarantor by a Guarantor Order, this Indenture shall cease to be
of further effect with respect to the Securities specified in such Company Order
or Guarantor Order and the Trustee, on receipt of a Company Order or a Guarantor
Order, at the expense of the Company and the Guarantor, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such Securities, when
(1) either
(a) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company or the Guarantor
and thereafter repaid to the Company or the Guarantor, as the case may
be, or discharged from such trust, as provided in Section 4.4) have
been delivered to the Trustee for cancellation; or
(b) all Securities, in the case of (i) or (ii) below, not
theretofore delivered to the Trustee for cancellation (i) have become
due and payable, (ii) will become due and payable at their Stated
Maturity within one year, or (iii) if redeemable at the option of the
Company, are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company and the Guarantor,
and the Company or the Guarantor, in the case of clause (a) or (b) above,
has irrevocably deposited or caused to be irrevocably deposited with the
Trustee or a Paying Agent (other than the Guarantor or any of its
Affiliates) as trust funds in trust for such purpose, money in Dollars in
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore
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delivered to the Trustee for cancellation, including the principal of, any
premium and interest on, and any Additional Amounts with respect to, such
Securities to the date of such deposit (in the case of Securities which
have become due and payable) or to the Maturity thereof, as the case may
be;
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor with respect
to the Outstanding Securities; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel and the Guarantor has delivered to the Trustee an
Officer's Certificate, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities, the obligations of the Company and the Guarantor to
the Trustee under Section 6.6 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section 4.1, the
obligations of the Company, the Guarantor and the Trustee with respect to the
Securities under Sections 2.3, 3.5, 3.6, 4.4, 10.1 and 10.2 and Article 18, and
with respect to the payment of Additional Amounts, if any, payable with respect
to such Securities as contemplated by Section 16.2 (but only to the extent that
the Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to subclause (b) of
clause (1) of this Section 4.1), and with respect to any rights to convert or
exchange such Securities into securities of the Company or the Guarantor or
another issuer that shall survive.
Section 4.2. Defeasance and Covenant Defeasance.
(1) The following provisions shall be applicable to the Securities,
and subject to Section 4.5, the Company may at its option by Board
Resolution, at any time, with respect to such Securities elect to have
clause (2) or (3) of this Section 4.2 be applied to such Outstanding
Securities upon compliance with the conditions set forth below in this
Section 4.2.
(2) Upon the Company's exercise of the above option applicable to this
Section 4.2(2) with respect to any Securities, the Company and the
Guarantor shall be deemed to have been discharged from their obligations
with respect to such Outstanding Securities and under the Guarantee in
respect thereof, respectively, on the date the conditions set forth in
clause (4) of this Section 4.2 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company or the Guarantor
shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities and under the Guarantee in
respect thereof, which shall thereafter be deemed to be "Outstanding" only
for the purposes of the Sections of this Indenture referred to in clauses
(i) and (ii) below, and to have satisfied all of its other obligations
under such Securities, and under the Guarantee in respect thereof, and this
Indenture insofar as such Securities and the Guarantee in respect thereof
are concerned (and the Trustee, at the expense of the Company and the
Guarantor, shall execute proper instruments acknowledging the same), except
for the following, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Outstanding
Securities to receive, solely from the trust fund described in clause (4)
of this Section 4.2 and as more fully set forth in such clause, payments in
respect of the principal of (and premium, if any) and interest, if any, on,
and Additional Amounts, if any, with respect to, such Securities when such
payments are due, (ii) the obligations of the Company, the Guarantor and
the Trustee with respect to such Securities under Sections 3.5 and 3.6,
this Section 4.2, Section 10.2 and Article 18, and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated
by Section 16.2 (but only to the extent that the Additional Amounts payable
with respect to such Securities exceed the amount deposited with respect to
such Additional
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Amounts pursuant to Section 4.2(4)(a) below), (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 4.2. The Company may exercise its option under this Section 4.2(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 4.2 with respect to such Securities.
(3) Upon the Company's exercise of the option to have this Section 4.2(3)
apply with respect to the Securities, the Company and the Guarantor shall be
released from their obligations under Sections 10.4 and 10.5 and Article 8 with
respect to such Outstanding Securities, and the Guarantee in respect thereof, on
and after the date the conditions set forth in clause (4) of this Section 4.2
are satisfied (hereinafter, "covenant defeasance"), and such Securities shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities, the Company
and the Guarantor may omit to comply with, and shall have no liability in
respect of, any term, condition or limitation set forth in any such Section,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or by reason of reference in any such Section 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 5.1(3) or 5.1(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and the Guarantee in respect thereof shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 4.2 to any Outstanding Securities and the Guarantee in
respect thereof:
(a) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.7 who shall agree to comply with the provisions
of this Section 4.2 applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (1) an amount in Dollars, or (2) Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and premium, if
any) and interest, if any, on such Outstanding Securities at the Stated
Maturity of such principal or installment of principal or premium or
interest on the days on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture
(other than a default or event of default resulting from the incurrence of
Indebtedness all or a portion of the proceeds of which will be used to
defease such Securities pursuant to clause (2) or (3) of this Section 4.2
concurrently with such incurrence) or any other material agreement or
instrument to which the Company or the Guarantor is a party or by which
either of them is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit (other than a
default or event of default resulting from the incurrence
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of Indebtedness all or a portion of the proceeds of which will be used to
defease such Securities pursuant to clause (2) or (3) of this Section 4.2
concurrently with such incurrence).
(d) In the case of an election under clause (2) of this Section 4.2,
the Company or the Guarantor shall have delivered to the Trustee an Opinion
of Counsel stating that (i) the Company or the Guarantor has received from
the Internal Revenue Service a letter ruling, or there has been published
by the Internal Revenue Service a Revenue Ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred; provided,
however, that such Opinion of Counsel need not be delivered if such
Outstanding Securities not previously delivered to the Trustee for
cancellation (1) have become due and payable; (2) will become due and
payable at their Stated Maturity within one year; or (3) if redeemable at
the option of the Company, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense of, the Company
and the Guarantor.
(e) In the case of an election under clause (3) of this Section 4.2,
the Company or the Guarantor shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Outstanding Securities
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.
(f) The Company or the Guarantor shall have delivered to the Trustee
an Opinion of Counsel to the effect that, assuming no Holder is an insider
of the Company or the Guarantor and after the 91st day after the date of
deposit, all money and Government Obligations (including the proceeds
thereof) deposited or caused to be deposited with the Trustee (or other
qualifying trustee) pursuant to this clause (4) to be held in trust will
not be subject to any case or proceeding (whether voluntary or involuntary)
in respect of the Company or the Guarantor under any Federal or State
bankruptcy, insolvency, reorganization or other similar law, or any decree
or order for relief in respect of the Company or the Guarantor issued in
connection therewith.
(g) The Company and the Guarantor shall have delivered to the Trustee
Officer's Certificates of the Company and the Guarantor and the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel,
each stating that all conditions precedent to the defeasance or covenant
defeasance under clause (2) or (3) of this Section 4.2 (as the case may be)
have been complied with.
Anything in this Section 4.2 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request, or
the Guarantor upon Guarantor Request, as the case may be, any money or
Government Obligations (or other property and any proceeds therefrom) held by it
as provided in clause (4) of this Section 4.2 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 4.2.
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Section 4.3. Application of Trust Money.
Subject to the provisions of Section 4.4, all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee pursuant
to Section 4.1 or 4.2 in respect of any Outstanding Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent or the
Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders
of such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any; but
such money and Government Obligations need not be segregated from other funds
except to the extent required by law.
Section 4.4. Repayment to Company or Guarantor.
The Trustee shall deliver or pay to the Company, upon a Company Request, or
the Guarantor, upon a Guarantor Request, money or Government Obligations (or
other property and any proceeds therefrom) held by it as provided in clause (4)
of Section 4.2 for the payment of principal or interest that remains unclaimed
for two years after a right to such money has matured; provided, however, that
the Trustee, before being required to make any such payment, may, at the expense
of the Company and the Guarantor, cause to be published once in a newspaper of
general circulation in the City of New York or cause to be mailed to each Holder
entitled to such money notice that (x) such money or Government Obligations (or
other property and any proceeds therefrom) remain unclaimed and (y) after a date
specified therein, which shall be at least 30 days from the date of such
mailing, any unclaimed balance of such money or Government Obligations (or other
property and any proceeds therefrom) then remaining will be repaid to the
Company or the Guarantor, as applicable. After payment to the Company or the
Guarantor, as applicable, Holders entitled to money must look to the Company and
the Guarantor for payment as general creditors.
Section 4.5. Limitation on Satisfaction and Discharge and Defeasance.
Notwithstanding anything to the contrary set forth in this Indenture,
neither the Company nor the Guarantor shall, directly or indirectly, at any time
any Existing EPIL Indebtedness is outstanding, without the prior written consent
of the Required Existing EPIL Holders, (i) effect any satisfaction and discharge
of this Indenture pursuant to Section 4.1 or (ii) effect any defeasance or
covenant defeasance pursuant to Section 4.2 and, in the case of clauses (i) and
(ii) of this sentence, neither the Company nor the Guarantor shall, directly or
indirectly, deposit or cause to be deposited with the Trustee (or any other
trustee under this Indenture) or a Paying Agent any money, Government
Obligations or other property or assets, or pay or cause to be paid any sum
payable hereunder by the Company or the Guarantor with respect to the
Outstanding Securities, in respect or in furtherance thereof.
ARTICLE 5
REMEDIES
Section 5.1. Events of Default.
"Event of Default," wherever used herein with respect to the Securities,
means any one of the following events (whatever the reason for such Event of
Default, whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body and
whether or not it shall be occasioned or prohibited by the provisions of Article
17 and, in circumstances where the Guarantor and/or the Company are required to
obtain the consent of the Required EPIL Holders or the Required Existing
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EPIL Holders, as the case may be, as a condition to taking any action, whether
or not occasioned or prohibited by the failure of the Guarantor and/or the
Company, as the case may be, to obtain such consent):
(1) default in the payment of any interest on any Security, or any
Additional Amounts payable with respect thereto, when such interest becomes
or such Additional Amounts become due and payable, and continuance of such
default for a period of 30 days (whether or not such payment is prohibited
by Article 17); or
(2) default in the payment of the principal of or any premium on any
Security, or any Additional Amounts payable with respect thereto, when such
principal or premium becomes or such Additional Amounts become due and
payable either at their Maturity upon any redemption, by declaration of
acceleration (whether or not such payment is prohibited by Article 17); or
(3) default in the performance, or breach, of any covenant or
agreement of the Company or the Guarantor in this Indenture or the
Securities and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness of the Guarantor, whether such
Indebtedness now exists or shall hereafter be created or incurred, shall
happen and shall consist of default in the payment of such Indebtedness at
the maturity thereof (after giving effect to any applicable grace period)
and such Indebtedness in aggregate principal amount exceeds $30,000,000, or
results in the Indebtedness in aggregate principal amount in excess of
$30,000,000 becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable, and, in each case, such
default shall not be cured or such acceleration shall not be rescinded or
annulled within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company and the Guarantor by the
Trustee or to the Company, the Guarantor and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities, a written
notice specifying such event of default and requiring the Company or the
Guarantor to cause such acceleration to be rescinded or annulled or to
cause such Indebtedness to be discharged and stating that such notice is a
"Notice of Default" hereunder; provided, however, that, subject to the
provisions of Section 9.01, the Trustee will not be deemed to have
knowledge of such nonpayment or other default unless either (1) a
Responsible Officer of the Trustee has actual knowledge of nonpayment or
other default or (2) the Trustee has received written notice thereof from
the Company, from any Holder, from the holder of any such Indebtedness or
from the trustee under the agreement or instrument relating to such
Indebtedness; or
(5) the Guarantor shall fail within 60 days to pay, bond or otherwise
discharge any uninsured judgment or court order for the payment of money in
excess of $30,000,000, which is not stayed on appeal or is not otherwise
being appropriately contested in good faith; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Guarantor in
an involuntary proceeding under any applicable bankruptcy, insolvency,
examinership, reorganization (other than a reorganization under a
foreign law that does not relate to insolvency) or
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other similar law and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Guarantor to be insolvent, or
approving a petition seeking reorganization (other than a
reorganization under a foreign law that does not relate to
insolvency), arrangement, adjustment or composition of the Guarantor
and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(c) a final and nonappealable order appointing a custodian,
receiver, liquidator, assignee, administrator, examiner, trustee or
other similar official of the Guarantor of any substantial part of the
property of the Guarantor or ordering the winding up or liquidation of
the affairs of the Guarantor; or
(7) the commencement by the Guarantor of a voluntary proceeding under
any applicable bankruptcy, insolvency, examinership, reorganization (other
than a reorganization under a foreign law that does not relate to
insolvency) or other similar law or of a voluntary proceeding seeking to be
adjudicated insolvent or the consent by the Guarantor to the entry of a
decree or order for relief in an involuntary proceeding under any
applicable bankruptcy, insolvency, examinership, reorganization or other
similar law or to the commencement of any insolvency proceedings against
it, or the filing by the Guarantor of a petition or answer or consent
seeking reorganization, arrangement, adjustment, examinership or
composition of the Guarantor or relief under any applicable law, or the
consent by the Guarantor to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, administrator, examiner, trustee or similar official of the
Guarantor or any substantial part of the property of the Guarantor or the
making by the Guarantor of an assignment for the benefit of creditors, or
the taking of corporate action by the Guarantor in furtherance of any such
action; or
(8) the Guarantee ceases to be in full force and effect or is declared
null and void or the Guarantor denies that it has any further liability
under the Guarantee or gives notice to such effect, other than by reason of
the termination of this Indenture with respect to the Securities.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities at the time Outstanding
(other than an Event of Default specified in clause (6) or (7) of Section 5.1)
occurs and is continuing, then, unless the principal of all the Securities shall
have already become due and payable, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities may declare the principal
of all the Securities to be due and payable immediately, by a notice in writing
to the Company and the Guarantor (and to the Trustee if given by the Holders),
and upon any such declaration such principal or such lesser amount shall become
immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder of any
Security.
At any time after a declaration of acceleration with respect to the
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal amount of the
Out-
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standing Securities, by written notice to the Company, the Guarantor and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities,
(b) the principal of and any premium on any Securities which have
become due otherwise than by such declaration of acceleration and
interest thereon and any Additional Amounts with respect thereto at
the rate or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of any interest
and Additional Amounts at the rate or rates borne by or provided for
in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 6.6; and
(2) all Events of Default with respect to the Securities, other than
the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to the Securities which shall have become
due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
In the event that the maturity of the Securities is accelerated pursuant to
this Section 5.2, 100% of the principal amount thereof plus accrued interest to
the date of payment shall become due and payable.
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and the Guarantor each covenants, in each case, that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts with respect to any Security when such interest
or Additional Amounts shall have become due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium
on any Security or any Additional Amounts with respect thereto at their
Maturity,
the Company or the Guarantor, as the case may be, shall, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of such Securities,
the whole amount of money then due and payable with respect to such Securities,
with interest upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection,
includ-
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ing the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due to the Trustee under
Section 6.6.
If the Company or the Guarantor fails to pay the money it is required to
pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of
the Trustee, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or the Guarantor or any other obligor upon
such Securities and collect the monies adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or the Guarantor or
any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
examinership, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, the Guarantor or any other
obligor upon the Securities or the property of the Company, the Guarantor or
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company or the Guarantor for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities, of the principal and any
premium, interest and Additional Amounts owing and unpaid in respect of the
Securities and to file such 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 or counsel) and of the Holders of Securities
allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
(3) and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder of Securities 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 of Securities, 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 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding.
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Section 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery or judgment, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, shall be for
the ratable benefit of each and every Holder of the Securities in respect of
which such judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal and any premium, interest and Additional Amounts
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on such Securities for principal
and any premium, interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
The Trustee may, upon prior written notice to the Company and the
Guarantor, fix a record date for any payment to Holders pursuant to this Article
5.
Section 5.7. Limitations on Suits.
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Securities, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such indemnity
as is reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 5.8. Unconditional Right of Holders To Receive Principal and Any
Premium, Interest and Additional Amounts.
The Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect to
such Security on the Stated Maturity therefor specified in such Security (or, in
the case of redemption, on the Redemption Date or, in the case of repayment at
the option of such Holder, on the date such repayment is due) and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Guarantor, the Trustee and each such Holder shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee and
each such Holder shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.6, no right or remedy herein conferred upon or reserved to the Trustee or to
each and every Holder of a Security is intended to be exclusive of any other
right or remedy, and every right and remedy, to the extent permitted by law,
shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not, to the extent permitted by law, prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to any Holder of a Security may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by such Holder, as
the case may be.
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Section 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities not joining in such action.
Section 5.13. Waiver of Past Defaults.
Subject to Sections 5.8 and 9.2, the Holders of not less than a majority in
principal amount of the Outstanding Securities on behalf of the Holders of all
the Securities may waive any past default hereunder with respect to the
Securities and its consequences, except a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under Article 9
cannot be modified, amended or waived without the consent of the Holder of
each Outstanding Security or without the consent of the Required EPIL
Holders.
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 5.14. Waiver of Usury, Stay or Extension Laws.
The Company and the Guarantor each covenants that (to the extent that it
may lawfully do so) it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
the Guarantor each expressly waives (to the extent that it may lawfully do so)
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
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attorneys' fees, against any party litigant in such suit having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.15 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on or
Additional Amounts, if any, with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment at
the option of the holder, on or after the date for repayment) or for the
enforcement of the right to convert any Security pursuant to Article 18.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Rights of Trustee.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this subsection (b) shall not be construed to limit the effect of
subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 5.12, relating
to the time, method and place of conducting any proceeding for any remedy
available to the
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Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.1.
(e) In connection with the administration of this Indenture:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company or of the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or a
Company Order or by a Guarantor Request or Guarantor Order, as the case may
be (in each case, other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 3.3 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board
of Directors of the Company or of the Guarantor's Board of Directors may be
sufficiently evidenced by a Board Resolution or by a Guarantor's Board
Resolution, as the case may be;
(3) whenever the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence shall be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon an Officer's Certificate of the Company or, if such matter pertains to
the Guarantor, an Officer's Certificate of the Guarantor;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities pursuant to this
Indenture, unless such Holders shall have offered to the Trustee such
security or indemnity as is reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may, but shall not be obligated to make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine, during business hours and upon reasonable
notice,
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the books, records and premises of the Company and the Guarantor,
personally or by agent or attorney, at the sole cost of the Company and the
Guarantor;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken or error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(9) the Authenticating Agent, Paying Agent, Security Registrar and
Conversion Agent shall have the same protections as the Trustee set forth
hereunder, including, without limitation, the right to be indemnified;
(10) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with an
Act of the Holders hereunder, and, to the extent not so provided herein,
with respect to any act requiring the Trustee to exercise its own
discretion, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture or any
Securities, unless it shall be proved that, in connection with any such
action taken, suffered or omitted or any such act, the Trustee was
negligent, acted in bad faith or engaged in willful misconduct;
(11) the Trustee shall not be deemed to have notice of any default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(12) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded; and
(13) in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities, the Trustee shall transmit by mail to all Holders of
Securities entitled to receive reports pursuant to Section 7.3(3), notice of
such default hereunder actually known to a Responsible Officer of the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any), or interest, if any, on, or Additional Amounts with respect to any
Security, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the best interest of the
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Holders of Securities; and provided, further, that in the case of any default of
the character specified in Section 5.1(4) with respect to Securities, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Article 6, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities.
Section 6.3. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication shall be taken as the statements of the Company or
the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
Section 6.4. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Guarantor or the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company or
the Guarantor with the same rights it would have if it were not the Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.5. Money Held in Trust.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company or the Guarantor.
Section 6.6. Compensation and Reimbursement.
The Company and the Guarantor (without duplication) each agree:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree to in writing for all
services rendered by the Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture or arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers, directors and
employees for, and to hold them harmless against, any and all loss,
damages, claims, liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee),
in-
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curred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim (whether asserted by the Company, the Guarantor, any Holder or
any other Person) or liability in connection with the exercise or
performance of any of their powers or duties hereunder, except to the
extent that any such loss, damages, claims, liability or expense was due to
the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company and the
Guarantor under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities.
To the extent permitted by law, any compensation or expense incurred by the
Trustee after a default specified in or pursuant to Section 5.1 is intended to
constitute an expense of administration under any then applicable bankruptcy or
insolvency law. "Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section 6.6 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
Section 6.7. Corporate Trustee Required; Eligibility.
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, any
state thereof or the District of Columbia that is eligible under Section
310(a)(1) of the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") to act as a trustee under an indenture qualified under the Trust Indenture
Act and that has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000, and that
is subject to supervision or examination by U.S. federal authority or the
authority of any state thereof or of the District of Columbia. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.8. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article 6 shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 6.9.
(2) The Trustee may resign at any time with respect to the Securities by
giving written notice thereof to the Company and the Guarantor. If the
instrument of acceptance by a successor Trustee required by Section 6.9 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction at the expense of the Company and the Guarantor for the appointment
of a successor Trustee with respect to the Securities.
(3) The Trustee may be removed at any time with respect to the Securities
by an Act of the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee, the Company and the Guarantor.
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(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon
it under the Indenture with respect to Securities after written request
therefor by the Company, the Guarantor or any Holder of a Security who has
been a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.7 and shall
fail to resign after written request therefor by the Company, the Guarantor
or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
or the Guarantor, by or pursuant to a Guarantor's Board Resolution, may remove
the Trustee with respect to all Securities, or (ii) any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company and the
Guarantor, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by or pursuant to a Board Resolution, and the Guarantor, by or pursuant to a
Guarantor's Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities and shall comply with the applicable
requirements of Section 6.9. If, within one year after such resignation, removal
or incapacity, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities delivered to the Company, the
Guarantor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.9, become the successor Trustee with
respect to the Securities and to that extent supersede the successor Trustee
appointed by the Company and the Guarantor. If no successor Trustee with respect
to the Securities shall have been so appointed by the Company and the Guarantor
or the Holders of Securities and accepted appointment in the manner required by
Section 6.9, any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Company and the Guarantor,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities and each appointment of a successor
Trustee with respect to the Securities by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders of Securities, if any, as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities and the
address of its Corporate Trust Office.
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(7) In no event shall any retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Section 6.9. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Guarantor and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the request
of the Company, the Guarantor or such successor Trustee, such retiring Trustee,
upon payment of its charges, shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and, subject to Section 10.3, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 6.6.
(2) Upon the appointment hereunder of any successor Trustee with respect to
the Securities, the Company, the Guarantor, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities and (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (c) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities to which the appointment of such successor Trustee relates other than
as hereinafter expressly set forth, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
to which the appointment of such successor Trustee relates; but, on request of
the Company, the Guarantor or such successor Trustee, such retiring Trustee,
upon payment of its charges with respect to the Securities to which the
appointment of such successor Trustee relates and subject to Section 10.3 shall
duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities to which the
appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 6.6.
(3) Upon request of any Person appointed hereunder as a successor Trustee,
the Company and the Guarantor shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in clause (1) or (2) of this Section 6.9,
as the case may be.
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(4) No Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate agency or
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.11. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the
Company with respect to the Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities upon original issue,
conversion, registration of transfer, partial redemption or partial repayment or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and the
Guarantor and is authorized under applicable law and by its charter to act as an
Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder; provided that
such Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the Guarantor
and shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities, if any, as their names and addresses
appear in the Security Register. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
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rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company and the Guarantor (without duplication) each agree to pay each
Authenticating Agent from time to time reasonable compensation for its services
under this Section. If the Trustee makes such payments, it shall be entitled to
be reimbursed for such payments, subject to the provisions of Section 6.6.
The provisions of Sections 3.8, 6.3 and 6.4 shall be applicable to each
Authenticating Agent.
If all of the Securities may not be originally issued at one time, and if
the Trustee does not have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the Company wishes to have
Securities authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not be accompanied by or contained in an Officer's
Certificate by the Company), shall appoint in accordance with this Section 6.11
an Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such Securities.
Section 6.12. Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction, the
Trustee shall have the power and may execute and deliver all instruments
necessary to appoint one or more Persons to act as a co-trustee or co-trustees,
or separate trustee or separate trustees, and to vest in such Person or Persons,
in such capacity and for the benefit of the Holders of Securities, and subject
to the other provisions of this Section 6.12, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 6.7 and no notice to Holders of
the appointment of any co-trustee or separate trustee shall be required under
Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them.
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Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article 6. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Indenture, specifically including every provision of
this Indenture relating to the conduct of, affecting the liability of, or
affording protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee. Every such
instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
Section 7.1. Company and Guarantor To Furnish Trustee Names and Addresses
of Holders.
The Company and the Guarantor shall furnish or cause to be furnished to the
Trustee:
(1) semi-annually with respect to the Securities not later than May 1
and November 1 of the year or upon such other dates as are set forth in or
pursuant to the Board Resolution authorizing such Securities, a list, in
each case in such form as the Trustee may reasonably require, of the names
and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company or the Guarantor of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to Holders.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantor and the Trustee that none of the Company, the
Guarantor, the Trustee, any Paying Agent or any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made hereunder.
Section 7.3. Reports by the Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Securities remain outstanding, the
Trustee shall mail to the Holders of Securities a brief report dated as of such
reporting date that complies with Section 313(a) of the Trust Indenture Act (but
if no event described in Section 313(a) of the Trust Indenture Act has occurred
within the
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twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with Section 313(b)(2) of the Trust Indenture Act. The
Trustee shall also transmit by mail all reports as required by Section 313(c) of
the Trust Indenture Act.
Section 7.4. Reports.
The Guarantor shall file with the Trustee, within 15 days after the
Guarantor files the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Guarantor may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Guarantor is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall file with the Trustee, when available, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Guarantor's or the Company's compliance with any of their
covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
ARTICLE 8
CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms.
Subject to Section 10.16, the Company shall not consolidate or amalgamate
with or merge into any other Person (whether or not affiliated with the
Company), or convey, transfer or lease its properties and assets as an entirety
or substantially as an entirety to any other Person (whether or not affiliated
with the Company), and the Company shall not permit any other Person (whether or
not affiliated with the Company) to consolidate or amalgamate with or merge into
the Company or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to the Company unless:
(1) in case the Company shall consolidate or amalgamate with or merge
into another Person or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to any Person, the Person
formed by such consolidation or amalgamation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company as an entirety or
substantially as an entirety shall be a Corporation or partnership
organized and existing under the laws of the United States of America or
any state thereof or the District of Columbia, Canada, Switzerland, Japan,
any AAA-rated country or any European Union Country, and shall expressly
assume, by an indenture (or indentures, if at such time there is more than
one Trustee) supplemental hereto, executed by the successor Person and the
Guarantor and delivered to the Trustee the due and punctual payment of the
principal of, any premium and interest on and any Additional Amounts with
respect to all the Securities and the performance of every obligation in
this Indenture and the Outstanding Securities on the part of the Company to
be performed or observed and shall provide for conversion rights in
accordance with Article 18;
(2) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as
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having been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default or event which, after notice or lapse of
time, or both, would become an Event of Default, shall have occurred and be
continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
Notwithstanding clauses (1) and (2) of this Section 8.1, subject to Section
10.16, the Company may merge with an Affiliate that is a corporation that has no
material assets or liabilities and was incorporated solely for the purpose of
reincorporating the Company in another jurisdiction.
Section 8.2. Successor Person Substituted for Company.
Upon any consolidation or amalgamation by the Company with or merger of the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company as an entirety or substantially as an
entirety to any Person in accordance with Section 8.1, the successor Person
formed by such consolidation or amalgamation or into which the Company is merged
or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; and thereafter, except in the case of a lease, the
predecessor Person shall be released from all obligations and covenants under
this Indenture and the Securities.
In the event that any such successor Person is organized under the laws of
a country other than the United States and withholding or deduction at source
for, or on account of, any present or future taxes, fees, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
such country in which the successor Person is organized or by or on behalf of
any political subdivision thereof or any taxing authority thereof or therein,
the successor Person shall pay to the Holder of the Securities such Additional
Amounts, under the same circumstances and subject to the same limitations
specified in Section 10.10, but substituting for Bermuda in each place in
Section 10.10 the name of the country under the laws of which the successor
Person is organized. In addition, such successor Person shall be entitled to
effect a redemption for tax reasons under the same circumstances and subject to
the same limitations as set forth in Section 11.8; provided that the relevant
change occurs after the effective date of the transaction resulting in such
successor Person.
Section 8.3. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate or amalgamate with or merge into any
other Person (whether or not affiliated with the Guarantor), or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Guarantor), and
the Guarantor shall not permit any other Person (whether or not affiliated with
the Guarantor) to consolidate or amalgamate with or merge into the Guarantor or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Guarantor unless:
(1) in case the Guarantor shall consolidate or amalgamate with or
merge into another Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, the
Person formed by such consolidation or amalgamation or into which the
Guarantor is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Guarantor as an entirety
or substantially as an entirety shall be a
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Corporation or partnership organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia,
Canada, Switzerland, Japan, any AAA-rated country or any European Union
Country, and shall expressly assume, by an indenture supplemental hereto,
executed by the successor Person and the Company and delivered to the
Trustee the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Securities
and the performance of every obligation in this Indenture and the
Outstanding Securities on the part of the Guarantor to be performed or
observed and shall provide for conversion rights in accordance with the
provisions of Article 18;
(2) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Guarantor or any
Subsidiary of the Guarantor as a result of such transaction as having been
incurred by the Guarantor or such Subsidiary at the time of such
transaction, no Event of Default or event which, after notice or lapse of
time, or both, would become an Event of Default, shall have occurred and be
continuing; and
(3) either the Guarantor or the successor Person shall have delivered
to the Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
Notwithstanding clauses (1) and (2) of this Section 8.3, the Guarantor may
merge with an Affiliate that is a corporation that has no material assets or
liabilities and was incorporated solely for the purpose of reincorporating the
Guarantor in another jurisdiction.
Section 8.4. Successor Person Substituted for Guarantor.
Upon any consolidation or amalgamation by the Guarantor with or merger of
the Guarantor into any other Person or any conveyance, transfer or lease of the
properties and assets of the Guarantor as an entirety or substantially as an
entirety to any Person in accordance with Section 8.3, the successor Person
formed by such consolidation or amalgamation or into which the Guarantor is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor Person had been
named as the Guarantor herein; and thereafter, except in the case of a lease,
the predecessor Person shall be released from all obligations and covenants
under this Indenture and the Securities.
In the event that any such successor Person is organized under the laws of
a country other than Ireland and withholding or deduction at source for, or on
account of, any present or future taxes, fees, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
such country in which the successor Person is organized or by or on behalf of
any political subdivision thereof or any taxing authority thereof or therein,
the successor Person shall pay to the Holder of the Securities such Additional
Amounts, under the same circumstances and subject to the same limitations
specified in Section 16.2, but substituting for Ireland in each place in Section
16.2 the name of the country under the laws of which the successor Person is
organized.
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ARTICLE 9
SUPPLEMENTAL INDENTURES; waivers
Section 9.1. Without Consent of Holders.
Subject to the provisions of this Indenture, including, without limitation,
Sections 9.8, 10.11 and 17.14, without the consent of any Holders of Securities,
the Company (when authorized by or pursuant to a Board Resolution), the
Guarantor (when authorized by or pursuant to a Guarantor's Board Resolution) and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor, and the assumption by any such successor of the covenants of the
Company or the Guarantor contained herein and in the Securities; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Company or the Guarantor; or
(3) Reserved.
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 6.9; or
(5) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect the
interests of the Holders of Securities then Outstanding in any material
respect; or
(6) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(7) to add any additional Events of Default with respect to the
Securities (as shall be specified in such supplemental indenture); or
(8) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge the Securities pursuant to Article 4, provided that any such
action shall not adversely affect the interests of any Holder of an
Outstanding Security in any material respect; or
(9) to secure the Securities pursuant to Section 10.4 or otherwise; or
(10) to make provisions with respect to conversion rights of Holders
of Securities; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture; provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities
then Outstanding.
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Section 9.2. With Consent of Holders.
Subject to the provisions of this Indenture, including, without limitation,
Sections 9.8, 10.11 and 17.14, with the consent of the Holders of not less than
a majority in principal amount of the Outstanding Securities (the "Required
Holders"), by Act of said Holders delivered to the Company, the Guarantor and
the Trustee, the Company (when authorized by or pursuant to a Board Resolution),
the Guarantor (when authorized by or pursuant to a Guarantor's Board Resolution)
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities under this Indenture or of the
Securities. Subject to Section 5.8 and the provisions of this Section 9.2, the
Required Holders may waive compliance with any term, provision or condition of
this Indenture without notice to any other Holders. However, no such
supplemental indenture and no waiver, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or
(2) reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts
with respect thereto, or any premium payable upon the redemption thereof or
otherwise, or
(3) change the obligation of the Company and the Guarantor to pay
Additional Amounts pursuant to the terms hereof (except as contemplated by
Article 8 and permitted by clause (1) of Section 9.1), or
(4) change the redemption provisions or adversely affect the right of
repayment at the option of any Holder as contemplated by Article 13, or
(5) change the Place of Payment, currency in which the principal of,
any premium or interest on, or any Additional Amounts with respect to any
Security is payable, or
(6) impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of a purchase
of Securities by the Guarantor pursuant to Section 13.1, on or after the
Change of Control Purchase Date), or
(7) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or reduce the requirements of Section 15.4 for quorum or voting, or
(8) modify or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or any premium or interest on, or
Additional Amounts with respect to, the Securities, or
(9) modify any of the provisions of this Section 9.2 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
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(10) make any change that adversely affects the right to convert or
exchange any Security into or for other securities, cash or property in
accordance with its terms, or
(11) decrease the Conversion Ratio.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
In connection with any waiver or supplemental indenture under this Article
9, the Company may, but shall not be obligated to, offer consideration to any
Holder who consents to such waiver or supplemental indenture, or to all Holders.
Section 9.3. Execution of Supplemental Indentures, Etc.
The Trustee shall sign any waiver or supplemental indenture authorized
pursuant to this Article 9 if the waiver or supplemental indenture does not
adversely affect the rights, duties and immunities of the Trustee under this
Indenture. As a condition to executing, or accepting the additional trusts
created by, any waiver or supplemental indenture permitted by this Article or
the modifications thereby of the trust created by this Indenture, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that such waiver or the execution of such
supplemental indenture is authorized or permitted by this Indenture and an
Officer's Certificate and Guarantor's Officer's Certificate stating that all
conditions precedent to the execution of such supplemental indenture have been
fulfilled. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.4. Effect of Waivers and Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article 9, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes. Upon the
effectiveness of any waiver or the execution of any supplemental indenture under
this Article 9, every Holder of a Security theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 9.5. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 9 may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
Section 9.6. Revocation and Effect of Consents.
Until a waiver or supplemental indenture becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the waiver
or supplemental indenture becomes effective.
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The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any waiver or
supplemental indenture, which record date shall be at least 10 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the second and third sentences of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such waiver or supplemental indenture or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. Such
consent shall be effective only for actions taken within 90 days after such
record date.
Section 9.7. Notice of Supplemental Indenture or Waiver.
Promptly after any waiver or the execution by the Company, the Guarantor
and the Trustee of any supplemental indenture, in each case, pursuant to Section
9.2, the Company shall transmit to the Holders of Outstanding Securities
affected thereby a notice setting forth the substance of such waiver or
supplemental indenture, as the case may be. Any failure of the Company to
provide such notice, or defect therein, shall not, however, in any way impair or
affect the validity of any such waiver or supplemental indenture.
Section 9.8. Supplemental Indentures and Waivers Requiring Consents of EPIL
Holders.
Notwithstanding anything in this Indenture to the contrary:
(a) no amendment, supplement or other modification or waiver of Sections
1.19, 1.20 (other than as such Section relates to Article 17), 1.21, 4.5, 10.11,
10.12, 10.13, 10.14, 10.15, 10.16 or 10.17, the fourth paragraph of Section 18.1
or this clause (a) of this Section 9.8 (or of any of the definitions used
therein) shall be effective without the prior written consent of the Required
Existing EPIL Holders; and
(b) no amendment, supplement or other modification or waiver of Article 17,
Section 1.20 (but only as such Section relates to Article 17) or this clause (b)
of this Section 9.8 (or of any of the definitions used therein) shall be
effective without the prior written consent of the Required EPIL Holders.
ARTICLE 10
COVENANTS
Section 10.1. Payment of Principal, Any Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities that it will duly and punctually pay the principal of, any premium
and interest on and any Additional Amounts with respect to the Securities in
accordance with the terms thereof and this Indenture.
Section 10.2. Maintenance of Office or Agency; Registrar, Paying Agent and
Conversion Agent.
The Company and the Guarantor shall maintain in each Place of Payment an
Office or Agency where the Securities may be presented or surrendered for
payment, where the Securities may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion, and where notices
and demands to or upon the Company or the Guarantor in respect of the Securities
and this Indenture may be served. So long as the Securities are listed on The
London Stock Exchange or the
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Irish Stock Exchange or any other stock exchange located outside the United
States and any such stock exchange shall so require, the Company and the
Guarantor shall maintain a Paying Agent in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any other required
city located outside the United States, as the case may be, so long as the
Securities are listed on such exchange. The Company and the Guarantor will 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 or the Guarantor
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.
The Company and the Guarantor may also from time to time designate one or
more other Offices or Agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company or the Guarantor of its obligation to maintain an
Office or Agency in each Place of Payment for such purposes. The Company and the
Guarantor 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.
Unless otherwise provided in or pursuant to this Indenture, the Company and
the Guarantor hereby designate as the Place of Payment for the Securities each
of London, Dublin and the Borough of Manhattan, The City of New York. The
Company and the Guarantor hereby initially appoint the Trustee as Paying Agent,
Security Registrar and Conversion Agent and the Corporate Trust Office of the
Trustee and the office or agency maintained by the Trustee in London and Dublin
as the Office or Agency where the Securities may be presented or surrendered for
payment, where the Securities may be surrendered for registration of transfer or
exchange, where the Securities may be surrendered for conversion and where
notices and demands to or upon the Company or the Guarantor may be served. The
Company and the Guarantor may subsequently appoint a different Office or Agency
in London, Dublin or the Borough of Manhattan, The City of New York, for the
Securities. The Company and the Guarantor may change any Paying Agent, Security
Registrar or Conversion Agent without notice to the Holders. The Company and the
Guarantor shall give prompt written notice to the Trustee of the name and
address of any Paying Agent or Conversion Agent not a party to this Indenture.
Section 10.3. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, or if the
Guarantor shall act as Paying Agent, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in Dollars sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and shall
promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it shall, prior
to each due date of the principal of, any premium or interest on or any
Additional Amounts with respect to the Securities, deposit with any Paying Agent
a sum (in Dollars) sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due, such sum to be held in trust for the benefit
of the Persons entitled thereto, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company or the
Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, any premium or interest on or any Additional Amounts
with respect to the Securities; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company or the Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order or Guarantor Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company, the Guarantor or such Paying
Agent, such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company, the Guarantor or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company or the
Guarantor, in trust for the payment of the principal of, any premium or interest
on or any Additional Amounts with respect to any Security and remaining
unclaimed for two years after such principal or any such premium or interest or
any such Additional Amounts shall have become due and payable shall be paid to
the Company on Company Request (or if deposited by the Guarantor, paid to the
Guarantor on Guarantor Request), or (if then held by the Company or the
Guarantor) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company and
the Guarantor 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 written request of and at the expense of the Company and the Guarantor cause
to be published once, in an Authorized Newspaper in each Place of Payment or to
be mailed to Holders of Securities, or both, 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 publication or mailing nor shall it be later than
two years after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company or the Guarantor, as the case may be.
Section 10.4. Limitation on Liens.
Subject to Section 10.16, so long as any Securities are Outstanding,
neither the Company nor the Guarantor will, and the Guarantor will not permit
any Restricted Subsidiary to, create, assume, incur, guarantee or otherwise
permit to exist any Indebtedness secured by a Lien upon any Principal Property,
or upon shares of Capital Stock or Indebtedness issued by any Restricted
Subsidiary and owned by the Company or the Guarantor, now or hereafter acquired,
without effectively providing concurrently that the Securities (and, if the
Company and the Guarantor so elect, any other indebtedness of the Company that
is not subordinate to the Securities and with respect to which the governing
instruments require, or
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pursuant to which the Company is otherwise obligated, to provide such security)
then Outstanding are secured equally and ratably with or, at the option of the
Company and the Guarantor, prior to such Indebtedness so long as such
Indebtedness shall be so secured.
The foregoing restriction shall not apply to, and there shall be excluded
from Indebtedness in any computation under such restriction, Indebtedness
secured by (i) Liens on any property, shares of Capital Stock or Indebtedness
existing at the time of the acquisition thereof; (ii) Liens on property, shares
of Capital Stock or Indebtedness of a Person existing at the time such Person is
consolidated or amalgamated with, or merged into, the Company, the Guarantor or
a Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties and assets of such Person (or a division thereof) as an entirety
or substantially as an entirety to the Company, the Guarantor or a Restricted
Subsidiary; provided that any such Lien does not extend to any property, shares
of Capital Stock or Indebtedness owned by the Company, the Guarantor or any
Restricted Subsidiary immediately prior to such consolidation, amalgamation,
merger, sale, lease or disposition; (iii) Liens on property, shares of Capital
Stock or Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary; (iv) Liens in favor of the Company, the Guarantor or a
Restricted Subsidiary; (v) Liens to secure all or part of the costs of
acquisition, construction, installation, development, improvement or renovation
of the underlying property, or to secure Indebtedness incurred to provide funds
for any such purpose; provided that the commitment of the creditor to extend the
credit secured by any such Lien shall have been obtained not later than 180 days
after the later of (A) the completion of the acquisition, construction,
installation, development, improvement or renovation of such property and (B)
the placing in operation of such property or of such property as so constructed,
developed, improved or renovated; (vi) Liens in favor of the United States of
America or any State thereof, or any other country, or any department, agency,
or instrumentality or political subdivision thereof, to secure partial progress,
advance or other payments; (vii) Liens securing industrial revenue or pollution
control bonds; and (viii) Liens existing on the date of the Indenture or any
extension, renewal or replacement or refunding of any Indebtedness secured by a
Lien existing on the date of the Indenture or referred to in clause (i), (ii),
(iii) or (v); provided, however, that the principal amount of Indebtedness
secured thereby and not otherwise authorized by clauses (i) through (vii) shall
not exceed the principal amount of Indebtedness, plus any premium or fee payable
in connection with any such extension, renewal, replacement, or refunding, so
secured at the time of such extension, renewal, replacement or refunding.
Subject to Section 10.16, notwithstanding the restrictions described above,
the Company, the Guarantor and the Restricted Subsidiaries may create, incur,
assume or guarantee Indebtedness secured by Liens without equally and ratably
securing the Securities then outstanding if, at the time of such creation,
incurrence, assumption or guarantee, after giving effect thereto and to the
retirement of any Indebtedness which is concurrently being retired, the
aggregate amount of all outstanding Indebtedness secured by Liens which would
otherwise be subject to such restrictions (other than any Indebtedness secured
by Liens permitted as described in clauses (i) through (viii) of the immediately
preceding paragraph) plus all Attributable Indebtedness in respect of sale and
leaseback transactions with respect to Principal Properties (with the exception
of such transactions which are permitted under clauses (i) through (v) of the
first sentence of the first paragraph of Section 10.5) does not exceed 15% of
Consolidated Net Tangible Assets.
Section 10.5. Limitation on Sale and Leaseback Transactions.
Subject to Sections 10.15 and 10.16, so long as any Securities are
Outstanding, neither the Company nor the Guarantor will, and the Guarantor will
not permit any Restricted Subsidiary to, enter into any sale and leaseback
transaction with respect to any Principal Property unless: (i) the sale and
leaseback transaction is solely with the Company, the Guarantor or a Restricted
Subsidiary; (ii) the lease is for a period not in excess of five years,
including renewal rights; (iii) the lease secures or relates to in-
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dustrial revenue or pollution control bonds; (iv) the Company, the Guarantor or
such Restricted Subsidiary would (at the time of entering into such arrangement)
be entitled as described in clauses (i) through (viii) of the second paragraph
of Section 10.4, without equally and ratably securing the Securities then
outstanding, to create, incur, assume, guarantee or otherwise permit to exist
Indebtedness secured by a Lien on such Principal Property in the amount of the
Attributable Indebtedness arising from such sale and leaseback transaction; (v)
the Company, the Guarantor or such Restricted Subsidiary, within 180 days after
the sale of such Principal Property in connection with such sale and leaseback
transaction is completed, applies an amount equal to the greater of (A) the net
proceeds of the sale of the Principal Property leased and (B) the fair market
value of the Principal Property leased to (1) the retirement of Securities or
other Funded Indebtedness of the Company, the Guarantor or a Restricted
Subsidiary or (2) the purchase of other property which will constitute a
Principal Property having a value at least equal to the value of the Principal
Property leased; or (vi) the Attributable Indebtedness of the Company, the
Guarantor and the Restricted Subsidiaries in respect of such sale and leaseback
transaction and all other sale and leaseback transactions entered into after the
date of this Indenture (other than any such sale and leaseback transactions as
would be permitted as described in clauses (i) through (v) of this sentence),
plus the aggregate principal amount of Indebtedness secured by Liens on
Principal Properties then outstanding (not including any such Indebtedness
secured by Liens described in clauses (i) through (viii) of the second paragraph
of Section 10.4) which do not equally and ratably secure such outstanding
Securities (or secure such outstanding Securities on a basis that is prior to
other Indebtedness secured thereby), would not exceed 15% of Consolidated Net
Tangible Assets.
Section 10.6. Corporate Existence.
Subject to Article 8, the Company and the Guarantor shall do or cause to be
done all things necessary to preserve and keep in full force and effect their
respective limited liability company, corporate or other legal existences and
that of each of their respective Subsidiaries and their respective rights
(charter and statutory) and franchises; provided, however, that the foregoing
shall not obligate the Company, the Guarantor or any of their respective
Subsidiaries to preserve any such right or franchise if the Company, the
Guarantor or any such Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of its business or the business of such
Subsidiary.
Section 10.7. Reserved.
Section 10.8. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officer's Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(a) a review of the activities of the Company during such year and of
its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a) the
Company has complied with all the conditions and covenants imposed on it
under this Indenture throughout such year, or, if there has been a default
in the fulfillment of any such condition or covenant, specifying each such
default known to him or her and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him and the
nature and status thereof.
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(2) The Company shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any Event of Default or any event which
after notice or lapse of time or both would become an Event of Default pursuant
to clause (3) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's compliance with
the covenants contained in this Article 10 other than as specifically set forth
in this Section 10.8.
Section 10.9. Guarantor Statement as to Compliance; Notice of Certain
Defaults.
(1) The Guarantor shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement (which need not be contained in or
accompanied by a Guarantor's Officer's Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such year and
of performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a) the
Guarantor has complied with conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each such default
known to him or her and the nature and status thereof, and (b) no event has
occurred and is continuing which constitutes, or which after notice or
lapse of time or both would become, an Event of Default, or, if such an
event has occurred and is continuing, specifying each such event known to
him and the nature and status thereof.
(2) The Guarantor shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default pursuant to clause (3) of Section
5.1. (3) The Trustee shall have no duty to monitor the Guarantor's compliance
with the covenants contained in this Article 10 other than as specifically set
forth in this Section 10.9.
Section 10.10. Additional Amounts.
The Company will pay to Holders of the Securities such Additional Amounts
as may be necessary in order that every net payment of principal, premium, if
any, Change of Control Purchase Price, Redemption Price or interest in respect
of any Securities, after deduction or withholding for or on account of any
present or future tax, assessment or other governmental charge imposed upon or
as a result of such payment by (i) Bermuda or Ireland or any political
subdivision or governmental authority thereof or therein having power to tax,
(ii) any jurisdiction from or through which payment is made, or any political
subdivision or governmental authority thereof or therein having the power to
tax, or (iii) any other jurisdiction in which the Company is organized or
otherwise considered to be a resident for tax purposes, or any political
subdivision or governmental authority thereof or therein having the power to
tax, will not be less than the amount provided for in such Securities to be then
due and payable; provided, however, that the foregoing obligation to pay
Additional Amounts will not apply
(a) with respect to any Security presented for payment by, or on
behalf of, a Holder who is liable for such taxes, duties, assessments or
other governmental charges in respect of such Securities by reason of such
Holder being a resident, domiciliary or national of, or engaging in
business or maintaining a permanent establishment or being physically
present in, a Relevant Taxing Jurisdiction, or any political subdivision or
taxing authority thereof or therein, or other-
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wise having some connection with a Relevant Taxing Jurisdiction, or any
political subdivision or taxing authority thereof or therein, other than
the mere holding of such Securities;
(b) to any tax, assessment or other governmental charge which would
not have been imposed but for the fact that such Holder (i) presented its
Securities for payment more than 30 days after the Relevant Date, except to
the extent that the Holder would have been entitled to Additional Amounts
if it had presented such Securities for payment on any day within the
30-day period or (ii) presented such Securities for payment in the Relevant
Taxing Jurisdiction, unless such Securities could not have been presented
for payment elsewhere;
(c) to any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply, following a request by
the Company to the Holder, with any certification, identification or
reporting requirements concerning the nationality, residence, identity or
connection with a Relevant Taxing Jurisdiction, or any political
subdivision or taxing authority thereof or therein, of the Holder of the
Securities, if compliance is required by statute or by regulation of a
Relevant Taxing Jurisdiction, or any political subdivision or taxing
authority thereof or therein, as a precondition to exemption from such tax,
assessment or other governmental charge;
(d) with respect to any Holder that has elected not to permit
redemption of its Securities pursuant to Section 11.8;
(e) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(f) any tax, assessment or other governmental charge that is payable
other than by withholding or deduction at source; or
(g) any combination of clauses (a) through (f) above.
In addition, the Company will not pay Additional Amounts with respect to
any payment of principal of, or premium, if any, interest or any other amounts
on, any Security to any Holder who is a fiduciary, partnership, limited
liability company or other than the sole beneficial owner of a Security, to the
extent the payment would be required by the laws of the Relevant Taxing
Jurisdiction, or any political subdivision or relevant taxing authority thereof
or therein, to be included in the income for tax purposes of a beneficiary,
partner, member or settlor with respect to such fiduciary or a member of such
partnership or limited liability company or a beneficial owner who would not
have been entitled to such Additional Amounts had it been the Holder.
"Relevant Date" means, when used in this Section 10.10, the date which is
the later of (i) the date on which such payment first becomes due and (ii) if
the full amount of the monies payable has not been received by the Trustee on or
prior to such date, the date that is 21 days after the date on which, the full
amount of such monies having been so received, notice to this effect shall have
been given to the Holders in accordance with this Indenture.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium, interest or any other amounts on, or in
respect of, any Security or the net proceeds received on the sale or conversion
of any Security, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any pro-
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vision hereof shall not be construed as excluding the payment of Additional
Amounts in those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities, at least 10 days prior to the first Interest Payment Date, and at
least 10 days prior to each date of payment of principal or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officer's Certificate of the Company, the Company shall furnish to the Trustee
and the principal Paying Agent or Paying Agents, if other than the Trustee, an
Officer's Certificate of the Company instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and premium, if any,
interest or any other amounts on the Securities shall be made to Holders of
Securities without withholding for or on account of any tax, fee, duty,
assessment or other governmental charge described in this Section 10.10. If any
such withholding shall be required, then such Officer's Certificate shall
specify by taxing jurisdiction the amount, if any, required to be withheld on
such payments to such Holders of Securities, and the Company agrees to pay to
the Trustee or such Paying Agent the Additional Amounts required by this Section
10.10. The Company covenants to indemnify the Trustee and any Paying Agent for,
and to hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on the
Officer's Certificate furnished pursuant to this Section 10.10.
Section 10.11. Limitation on Certain Amendments, Modifications and
Supplements.
Neither the Company nor the Guarantor shall, directly or indirectly, at any
time any Existing EPIL Indebtedness is outstanding, without the prior written
consent of the Required Existing EPIL Holders, amend, supplement or otherwise
modify this Indenture or the Securities; provided, however, that the Company and
the Guarantor may amend, modify or supplement this Indenture and the Securities
(i) to evidence the succession of a successor Person to the Guarantor pursuant
to Section 8.3, (ii) to comply with Section 18.16 hereof, (iii) to evidence or
provide for the acceptance of a successor Trustee pursuant to Section 6.9 or
(iv) to make any change that does not adversely affect the interests of the
holders of the EPIL II Notes or the EPIL III Notes; provided, further, that,
subject to clause (iv) of this paragraph and Section 9.8, nothing in this
paragraph shall prohibit or otherwise restrict any waiver of any term, provision
or condition of this Indenture or the Securities that waives or reduces the
rights of the Holders (it being understood that any such waiver shall not be
deemed to be adverse to the interests of the holders of the EPIL II Notes or the
EPIL III Notes solely because such waiver prevents the existence of a
cross-default under the EPIL II Agreements or the EPIL III Agreements).
The Guarantor will not, and will not permit Athena to, directly or
indirectly, at any time any Existing EPIL Indebtedness is outstanding, without
the prior written consent of the Required Existing
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EPIL Holders, amend, supplement or otherwise modify the Athena Indenture or the
Athena Notes; provided, however, that Athena and the Guarantor may amend, modify
or supplement the Athena Indenture and the Athena Notes (i) to evidence the
succession of a successor Person to the Guarantor pursuant to Article 8 thereof,
(ii) to evidence or provide for the acceptance of a successor trustee pursuant
to the terms of the Athena Indenture or (iii) to make any change that does not
adversely affect the interests of the holders of the EPIL II Notes or the EPIL
III Notes; provided, further, that, subject to clause (iii) of this paragraph,
nothing in this paragraph shall prohibit or otherwise restrict any waiver of any
term, provision or condition of the Athena Indenture or the Athena Notes that
waives or reduces the rights of the holders of the Athena Notes (it being
understood that any such waiver shall not be deemed to be adverse to the
interests of the holders of the EPIL II Notes or the EPIL III Notes solely
because such waiver prevents the existence of a cross-default under the EPIL II
Agreements or the EPIL III Agreements).
The Guarantor will not, and will not permit EFC to, directly or indirectly,
at any time any Existing EPIL Indebtedness is outstanding, without the prior
written consent of the Required Existing EPIL Holders, amend, supplement or
otherwise modify the ▇▇▇▇▇ Indenture or the ▇▇▇▇▇; provided, however, that the
EFC and the Guarantor may amend, modify or supplement the ▇▇▇▇▇ Indenture and
the ▇▇▇▇▇ (i) to evidence the succession of a successor Person to the Guarantor
pursuant to Article 5 of the ▇▇▇▇▇ Indenture, (ii) to comply with Section 11.14
of the ▇▇▇▇▇ Indenture, (iii) to evidence or provide for the acceptance of a
successor trustee pursuant to the terms of the ▇▇▇▇▇ Indenture or (iv) to make
any change that does not adversely affect the interests of the holders of the
EPIL II Notes or the EPIL III Notes; provided, further, that, subject to clause
(iv) of this paragraph, nothing in this paragraph shall prohibit or otherwise
restrict any waiver of any term, provision or condition of the ▇▇▇▇▇ Indenture
or the ▇▇▇▇▇ that waives or reduces the rights of the holders of the ▇▇▇▇▇ (it
being understood that any such waiver shall not be deemed to be adverse to the
interests of the holders of the EPIL II Notes or the EPIL III Notes solely
because such waiver prevents the existence of a cross-default under the EPIL II
Agreements or the EPIL III Agreements).
Neither the Company nor the Guarantor will, directly or indirectly, at any
time any Existing EPIL Indebtedness is outstanding, without the prior written
consent of the Required Existing EPIL Holders, amend, supplement or otherwise
modify the Guarantor Intercompany Note; provided, however, that the Company and
the Guarantor may amend, modify or supplement the Guarantor Intercompany Note to
make any change that does not adversely affect the interests of the holders of
the EPIL II Notes or the EPIL III Notes.
Neither the Company nor the Guarantor will, directly or indirectly, at any
time any Existing EPIL Indebtedness is outstanding, without the prior written
consent of the Required Existing EPIL Holders, amend, supplement or otherwise
modify the Elan Funding Agreement; provided, however, that the Company and the
Guarantor may amend, modify or supplement the Elan Funding Agreement to make any
change that does not adversely affect the interests of the holders of the EPIL
II Notes or the EPIL III Notes.
Section 10.12. Limitation on Disposition of Guarantor Intercompany Note.
The Company will not, directly or indirectly, at any time any Existing EPIL
Indebtedness is outstanding, without the prior written consent of the Required
Existing EPIL Holders, sell, convey, transfer, assign or otherwise dispose of
all or any portion of the Guarantor Intercompany Note.
Section 10.13. Limitation on Retirement of Indebtedness.
Notwithstanding anything in this Indenture to the contrary (including,
without limitation, Sections 4.1, 4.2, 11.8, 11.9 and 18.1 (solely as it relates
to the payment of the Cash Alternative)), neither the Company nor the Guarantor
will, and the Guarantor will not permit any of its other Subsidiaries to,
directly or indirectly, at any time any Existing EPIL Indebtedness is
outstanding, without the prior written consent of the Required Existing EPIL
Holders, purchase, redeem, prepay or otherwise acquire or retire for value,
prior to any scheduled final maturity, the Securities, the Athena Notes or, on
or after December 14, 2003, any ▇▇▇▇▇ not purchased as of the December 14, 2003
"Purchase Date" (as defined in the ▇▇▇▇▇ Indenture) pursuant to Section 3.08 of
the ▇▇▇▇▇ Indenture and paragraph 6 of the ▇▇▇▇▇ or incur any liability to
effect, or order or set apart any sum or property for, the same; provided,
however, that, with respect to any purchase of ▇▇▇▇▇ by the Guarantor or any of
its Subsidiaries prior to December 14, 2003, (i) none of the Guarantor, any of
its Subsidiaries or any Person acting on behalf of the Guarantor or any of its
Subsidiaries shall, directly or indirectly, conduct any solicitation of the
holders of the ▇▇▇▇▇ in connection with such purchase and (ii) the purchase
price per $1,000 principal amount at maturity of any ▇▇▇▇▇ so purchased may not
exceed $616.57; provided, further, that nothing in this Section 10.13 shall
restrict or prohibit the conversion of the Securities pursuant to Article 18
(including,
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without limitation, the payment of cash in lieu of fractional shares upon any
such conversion pursuant to Article 18).
Section 10.14. Limitation on Dividends and Stock Repurchases.
The Guarantor will not, directly or indirectly, at any time any Existing
EPIL Indebtedness is outstanding, without the prior written consent of the
Required Existing EPIL Holders, declare, authorize or pay any dividend or make
any distribution on or in respect of any Capital Stock of the Guarantor (other
than dividends or distributions paid solely in Ordinary Shares of the Guarantor)
to the holders of such Capital Stock, or set apart any sum or property for the
same, or incur any liability to declare, authorize, pay or make or set apart any
sum or property for the same.
The Guarantor will not, and will not permit any of its Subsidiaries to,
directly or indirectly, at any time any Existing EPIL Indebtedness is
outstanding, without the prior written consent of the Required Existing EPIL
Holders, redeem, purchase or otherwise acquire or retire for value any Capital
Stock of the Guarantor.
Section 10.15. Limitation on Asset Sales.
The Guarantor shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, at any time any Existing EPIL Indebtedness is
outstanding, without the prior written consent of the Required Existing EPIL
Holders, consummate any Asset Sale if, after giving effect to the consummation
of such Asset Sale, the aggregate consideration received by the Guarantor and
its Subsidiaries in respect of all Asset Sales occurring during the period from
the Issue Date to the date of such consummation would exceed $1.5 billion.
Section 10.16. Limitation on Activities of the Company.
Notwithstanding anything to the contrary set forth in this Indenture, the
Company will not, directly or indirectly, at any time any Existing EPIL
Indebtedness is outstanding, without the prior written consent of the Required
Existing EPIL Holders, (i) conduct any business or hold or acquire any assets
other than (a) the performance of its obligations under this Indenture and the
Securities and actions incidental thereto (including, without limitation,
pursuant to the Elan Funding Agreement) and (b) actions required by law to
maintain its existence, (ii) incur any Indebtedness, (iii) suffer to exist any
Liens (other than Liens granted pursuant to Section 6.6 hereof) or (iv)
consolidate or amalgamate with or merge into any other Person, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to any other Person, or permit any other Person to consolidate or
amalgamate with or merge into the Company or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to the
Company.
Section 10.17. Limitation on Investments in the Company.
The Guarantor will not, and will not permit any of its Subsidiaries to,
directly or indirectly, at any time any Existing EPIL Indebtedness is
outstanding, without the prior written consent of the Required Existing EPIL
Holders, make, declare or authorize any Investment in the Company, or set apart
any sum or property for the same, or incur any liability to make, declare or
authorize or set apart any sum or property for the same.
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ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1. Reserved.
Section 11.2. Election To Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of any of the Securities, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date.
Section 11.3. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Security of such series not redeemed to less than the minimum denomination for a
Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
If any Security selected for partial redemption is converted into Shares
pursuant to Article 18 before termination of such conversion right with respect
to the portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the
purpose of such selection.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.7,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Securities designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
Any notice that is mailed to the Holder of any Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
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All notices of redemption shall state the Securities being redeemed
(including ISIN/CUSIP numbers) and the following:
(1) the Redemption Date;
(2) the Redemption Price;
(3) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of each Security, the Holder of such Security will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(4) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed,
and, if applicable, that interest thereon shall cease to accrue on and
after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and any accrued interest and Additional
Amounts pertaining thereto;
(6) if less than all of the Outstanding Securities are to be redeemed,
the identification (and in the case of a partial redemption, the principal
amount) of the particular Security or Securities to be redeemed;
(7) the date or dates on which the right to convert the principal of
the Securities to be redeemed will commence or terminate and the place or
places where such Securities may be surrendered for conversion; and
(8) the ISIN/CUSIP number or the Euroclear or the Clearstream
reference numbers of such Securities, if any (or any other numbers used by
a Clearing Agency to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need not
identify particular Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5. Deposit of Redemption Price.
On or prior to 10:00 A.M. New York City time, on the day that is one
Business Day prior to any Redemption Date, the Company or the Guarantor shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent or the Guarantor is acting as Paying Agent, segregate and
hold in trust as provided in Section 10.3) an amount of money in Dollars
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) any accrued interest on and Additional
Amounts with respect thereto, all such Securities or portions thereof which are
to be redeemed on that date.
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Section 11.6. Securities Redeemed.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company and the Guarantor shall default in the payment of the Redemption Price,
accrued interest and Additional Interest, if any) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price, together with any accrued interest and Additional Amounts to the
Redemption Date; provided, however that, except as otherwise specified in or
pursuant to this Indenture or the Securities, installments of interest on
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
any Office or Agency for such Security (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series,
containing identical terms and provisions, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered. If a
Security in global form is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the depository for such Security in
global form as shall be specified in the Company Order with respect thereto to
the Trustee, without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
Section 11.8. Redemption for Tax Reasons.
Subject to Section 10.13, the Company, at its option, may redeem the
Securities for cash prior to their maturity in the event of certain changes in
the tax laws of any Relevant Taxing Jurisdiction after the date of issuance of
the Securities as specified below. If, as a result of any change in, or
amendment to, the laws (including any regulations or rulings promulgated
thereunder) of a Relevant Taxing Jurisdiction, or any political subdivision or
taxing authority thereof or therein, or any amendment to or change in the
application or official interpretation of such laws, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction or
any action taken by a taxing authority which action is generally applied or is
taken with respect to the Company or the Guarantor), which change, amendment,
application or interpretation is proposed and becomes effective on or after the
date of issuance of the Securities, the Company or the Guarantor has or would
become obligated to pay to the Holder of any Securities Additional Amounts, and
such obligations cannot be avoided by the Company or the Guarantor, as
applicable, taking reasonable measures (consistent with practices and
interpretations generally followed or in effect at the time such measures could
be taken) available to it, then the Company may, at its option, redeem the
Securities as a whole but not in part, upon not less than 30 days' nor more than
60 days' notice given as provided in Section 11.4, at a Redemption Price equal
to 100% of the Securities' aggregate principal amount plus accrued and unpaid
interest and any Additional Amounts on
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such Securities, to but excluding the Redemption Date, but without reduction for
withholding taxes except that no such notice of redemption may be given earlier
than 60 days prior to the earliest date on which the Company or the Guarantor
would be obliged to pay any such Additional Amounts were a payment in respect of
the Securities then due.
Prior to the giving of any such notice of redemption, the Company must
deliver to the Trustee (a) an Officer's Certificate to the effect that the
Company is entitled to effect such redemption and setting forth a statement of
facts showing that the conditions precedent to the Company's right to redeem
have occurred and (b) an Opinion of Counsel to the effect that the Company or
the Guarantor has or would become obligated to pay any Additional Amounts as a
result of such change, amendment, application or interpretation. The Company's
right to redeem the Securities shall continue as long as the Company or the
Guarantor is obligated to pay such Additional Amounts, notwithstanding that the
Company or the Guarantor shall have made payments of Additional Amounts.
Notwithstanding the foregoing, any Holder may elect not to permit
redemption of its Securities in the manner described above; provided that,
following any such election, such Holder will not be entitled to receive
Additional Amounts.
Section 11.9. Redemption at the Option of the Company.
Subject to Section 10.13, on giving not less than 30 or more than 60 days'
notice to the Trustee and the Holders, the Company may, at any time after [o
years plus 10 days after issuance], redeem Securities at its option, in whole or
in part, at a Redemption Price equal to 100% of the Securities' aggregate
principal amount plus accrued and unpaid interest on, and any Additional Amounts
with respect to, such Securities to, but excluding, the Redemption Date;
provided that, within a period of 30 consecutive Trading Days ending five
Trading Days prior to the date on which the relevant notice of redemption is
given as provided above, the Sale Price of the ADSs for 20 Trading Days shall
have been at least [o]% of the Conversion Price deemed to be in effect on each
of such Trading Days.
"Conversion Price" means an amount equal to $1,000 divided by the
Conversion Ratio.
ARTICLE 12
RESERVED
ARTICLE 13
REDEMPTION AT THE OPTION OF HOLDERS UPON
CHANGE OF CONTROL
Section 13.1. Purchase of Securities at Option of the Holder upon Change of
Control.
(a) If, on or after March 16, 2005, there shall have occurred a Change of
Control, Securities shall be purchased, at the option of the Holder thereof, by
the Guarantor at a purchase price equal to 100% of the aggregate principal
amount thereof plus accrued interest thereon to, but excluding, the Change of
Control Purchase Date (the "Change of Control Purchase Price"), on the date that
is 90 Business Days after the occurrence of the Change of Control (the "Change
of Control Purchase Date"), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 13.1(c).
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A "Change of Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any consolidation or merger of the
Guarantor pursuant to which the Ordinary Shares would be converted into
cash, securities or other property, in each case other than (x) a
consolidation or merger of the Guarantor in which the Person or Persons
that beneficially owned directly or indirectly, Ordinary Shares immediately
prior to such consolidation or merger beneficially own, immediately after
such consolidation or merger, directly or indirectly, Capital Stock
normally entitled to vote in the election of directors of the continuing or
surviving corporation having a majority of the total voting power, in the
aggregate, of all classes of such Capital Stock of the continuing or
surviving corporation and (y) any merger which is effected solely to change
the jurisdiction of incorporation of the Guarantor and results in a
reclassification, conversion or exchange of outstanding Ordinary Shares
into solely shares of common stock or ordinary shares (the terms
"beneficially owned" and "beneficially own" have meanings correlative to
that of "beneficial owner," as defined below); or
(ii) There is a report filed (or a report would be required to be
filed but for the fact that beneficial ownership is of the Ordinary Shares
and not ADSs) by any person (for the purposes of this Section 13.1 only,
the term "person" shall include a "person" within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision
to either of the foregoing) on Schedule 13D or Schedule TO (or any
successor schedule, form or report) pursuant to the Exchange Act,
disclosing that such person has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of 50% or more of the total
voting power in the aggregate of all classes of Capital Stock then
outstanding of the Guarantor normally entitled to vote in elections of
directors; provided, however, that a person shall not be deemed beneficial
owner of, or to own beneficially, (A) any securities tendered pursuant to a
tender or exchange offer made by or on behalf of such person until such
tendered securities are accepted for purchase or exchange thereunder, or
(B) any securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act, and (2) is not also then reportable
on Schedule 13D (or any successor schedule, form or report) under the
Exchange Act.
Notwithstanding the foregoing provisions of this Section 13.1, a Change of
Control shall not be deemed to have occurred if (x) at any time the Guarantor,
any Subsidiary of the Guarantor, any employee stock ownership plan or any other
employee benefit plan of either the Guarantor or any Subsidiary of the
Guarantor, or any person holding Ordinary Shares or ADSs for or pursuant to the
terms of any such employee benefit plan files or becomes obligated to file a
report under or in response to Schedule 13D or Schedule TO (or any successor
schedule, form or report) under the Exchange Act disclosing beneficial ownership
by it of 50% or more of the total voting power in the aggregate of all classes
of Capital Stock then outstanding of the Guarantor normally entitled to vote in
elections of directors or (y) all the consideration (excluding cash payments for
fractional ADSs) offered in the transaction or transactions constituting the
Change of Control consists of Listed Equity Securities and as a result of such
transaction or transactions the Securities become convertible or exchangeable
into such common equity securities.
Notwithstanding anything herein to the contrary, the Company's obligations
pursuant to this Section 13.1 shall be satisfied if a third party makes an offer
to repurchase Outstanding Securities after a Change of Control in the manner,
and at the time and otherwise in compliance in all material respects with the
requirements of this Section 13.1 and purchases all Securities properly tendered
and not withdrawn pursuant to the requirements of this Section 13.1.
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In addition, the Company shall not be required to deliver notice of Change
of Control pursuant to Section 13.1(b), if, in connection with or in
contemplation of any Change of Control, the Company has made an offer to
purchase (an "Alternate Offer") any and all Securities validly tendered at a
cash price equal to or higher than the Change of Control Purchase Price and has
purchased all Securities properly tendered in accordance with the terms of such
Alternate Offer; provided, however, that the terms and conditions of such
contemplated Change of Control are described in reasonable detail to the Holders
in the notice delivered in connection with such Alternate Offer.
(b) Within 15 Business Days after the occurrence of a Change of Control,
the Guarantor shall mail a written notice of such Change of Control by
first-class mail to the Trustee (and any Paying Agent if the Trustee is not then
acting as Paying Agent) and to each Holder (and to beneficial owners if required
by applicable law). The notice shall include a form of Change of Control
Purchase Notice to be completed by the Holder and shall state:
(1) briefly, the events causing a Change of Control and the date such
Change of Control is deemed to have occurred for purposes of this
Section 13.1;
(2) the date by which the Change of Control Purchase Notice pursuant
to this Section 13.1 must be given;
(3) the Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion Agent
and the Office or Agency referred to in Section 10.2;
(6) the Conversion Ratio and any adjustments thereto;
(7) that Securities as to which a Change of Control Purchase Notice
has been given may be converted into Ordinary Shares or ADSs (or,
in lieu thereof, a Cash Alternative, if the Company shall so
elect) in accordance with Article 18 at any time prior to the
close of business on the Change of Control Purchase Date only if
the Change of Control Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent or the
Office or Agency referred to in Section 10.2 to collect payment;
(9) that the Change of Control Purchase Price for any Security as to
which a Change of Control Purchase Notice has been duly given and
not withdrawn will be paid promptly following the later of the
Change of Control Purchase Date and the time of surrender of such
Security as described in clause (8) of this Section 31.1;
(10) the procedures the Holder must follow to exercise rights under
this Section 13.1 and a brief description of those rights;
(11) briefly, the conversion rights of the Securities; and
(12) the procedures for withdrawing a Change of Control Purchase
Notice.
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If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Clearing Agencies applicable to the repurchase of Global
Securities.
(c) A Holder may exercise its rights specified in Section 13.1(a) upon
delivery of a written notice of purchase (a "Change of Control Purchase Notice")
, which may be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written format and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with
the Clearing Agencies' customary practice, to any Paying Agent or to the Office
or Agency referred to in Section 10.2 at any time prior to the close of business
on the Change of Control Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the principal amount of the Security which
the Holder will deliver to be purchased, which portion must
be $1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased on the Change of
Control Purchase Date pursuant to the terms and conditions
specified in this Article 13.
The delivery of such Security to any Paying Agent prior to, on or after the
Change of Control Purchase Date (together with all necessary endorsements), at
the offices of the Paying Agent or to the Office or Agency referred to in
Section 10.2 shall be a condition to the receipt by the Holder of the Change of
Control Purchase Price therefor; provided, however, that such Change of Control
Purchase Price shall be so paid pursuant to this Section 13.1 only if the
Security so delivered to the Paying Agent or such Office or Agency shall conform
in all respects to the description thereof set forth in the related Change of
Control Purchase Notice.
The Guarantor shall purchase from the Holder thereof, pursuant to this
Section 13.1, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Article 13 that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent or to the Office or Agency referred to in Section 10.2 the
Change of Control Purchase Notice contemplated by this Section 13.1(c) shall
have the right to withdraw such Change of Control Purchase Notice at any time
prior to the close of business on the Change of Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent or to such Office
or Agency in accordance with Section 13.2.
The Paying Agent shall promptly notify the Guarantor of the receipt by it
of any Change of Control Purchase Notice or written withdrawal thereof.
Section 13.2. Effect of Change of Control Purchase Notice.
Upon receipt by any Paying Agent of the Change of Control Purchase Notice
specified in Section 13.1, the Holder of the Security in respect of which such
Change of Control Purchase Notice was given shall (unless such Change of Control
Purchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Such Change of Control Purchase Price shall be
paid to such Holder, subject to receipt
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of funds and/or securities by the applicable Paying Agent, promptly following
the later of (x) the Business Day following the Change of Control Purchase Date
with respect to such Security (provided that the conditions in Section 13.1(c)
have been satisfied) and (y) the time of delivery of such Security to a Paying
Agent or to the Office or Agency referred to in Section 10.2 by the Holder
thereof in the manner required by Section 13.1. Securities in respect of which a
Change of Control Purchase Notice has been given by the Holder thereof may not
be converted into Ordinary Shares or ADSs pursuant to Article 11 on or after the
date of the delivery of such Change of Control Purchase Notice unless such
Change of Control Purchase Notice has first been validly withdrawn as specified
in the following two paragraphs.
A Change of Control Purchase Notice may be withdrawn by a Holder by means
of a written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written format and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Common Depositary's customary practice) of withdrawal
delivered to the office of the Paying Agent or to the Office or Agency referred
to in Section 10.2 in accordance with the Change of Control Purchase Notice at
any time on or prior to the Change of Control Purchase Date, specifying:
(1) the name of the Holder;
(2) the certificate number of the Security or portion thereof in respect
of which such notice of withdrawal is being submitted;
(3) the principal amount of the Security or portion thereof with respect
to which such notice of withdrawal is being submitted; and
(4) the principal amount, if any, of such Security which remains subject
to the original Change of Control Purchase Notice and which has been
or will be delivered for purchase by the Guarantor.
Section 13.3. Deposit of Change of Control Purchase Price.
Prior to 10:00 a.m. (local time in The City of New York), on the Business
Day following the Change of Control Purchase Date, the Guarantor shall deposit
with the Trustee or with a Paying Agent (other than the Company or the Guarantor
or a Subsidiary or an Affiliate of either of them) is an amount of cash in
immediately available funds sufficient to pay the aggregate Change of Control
Purchase Price of all the Securities or portions thereof which are to be
purchased as of the Change of Control Purchase Date. The manner in which the
deposit required by this Section 13.3 is made by the Guarantor shall be at the
option of the Guarantor; provided, however, that such deposit shall be made in a
manner such that the Trustee or a Paying Agent shall have Dollars in immediately
available funds prior to 11:00 a.m. (local time in The City of New York) on the
Business Day following the Change of Control Purchase Date.
Section 13.4. Securities Purchased in Part.
Any Security which is to be purchased only in part shall be surrendered at
the office of the Paying Agent or the Office or Agency referred to in Section
10.2 (with, if the Company or the Trustee so requires, due endorsement, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee executed by the Holder or such Holder's attorney duly authorized in
writing), and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, a new Security
or Securities, having endorsed thereon a Guarantee or Guarantees duly executed
by the Guarantor, of any authorized denomination as requested by such Holder in
aggregate
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principal amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered which is not purchased.
Section 13.5. Compliance with Securities Laws upon Purchase of Securities.
In connection with any offer to purchase or purchase of Securities under
Section 13.1, the Guarantor shall (a) comply with Rule 13e-4 and Rule 14e-1
under the Exchange Act (or any successor to either such Rule), if applicable,
(b) file the related Schedule T-O (or any successor schedule, form or report)
under the Exchange Act, if applicable, and (c) otherwise comply with all Federal
and state securities laws regulating the offer and delivery of ADSs upon
purchase of the Securities (including positions of the SEC, under applicable
no-action letters) so as to permit the rights and obligations under Sections
13.1 through 13.4 to be exercised in the time and in the manner specified
therein.
Section 13.6. Repayment to the Guarantor.
To the extent that the aggregate amount of cash deposited by the Guarantor
pursuant to Section 13.3 exceeds the aggregate Change of Control Purchase Price
of the Securities or portions thereof to be purchased, then promptly after the
Business Day following the Change of Control Purchase Date, as the case may be,
the Trustee shall return any such excess to the Guarantor, together with
interest, if any, thereon.
ARTICLE 14
RESERVED
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and from time
to time pursuant to this Article 15 to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities.
Section 15.2. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities for
any purpose specified in Section 15.1, to be held at such time and at such place
in the Borough of Manhattan, The City of New York. Notice of every meeting of
Holders of Securities, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.7, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution),
the Guarantor (by or pursuant to a Guarantor's Board Resolution) or the Holders
of at least 10% in principal amount of the Outstanding Securities shall have
requested the Trustee to call a meeting of the Holders of Securities for any
purpose specified in Section 15.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of or made the first publication of the
notice of such meeting within 21 days after receipt of such request (whichever
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shall be required pursuant to Section 1.7) or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company, the Guarantor
or the Holders of Securities in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York.
Section 15.3. Persons Entitled To Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities, a Person
shall be (1) a Holder of one or more Outstanding Securities, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel, any representatives
of the Guarantor and its counsel and any representatives of the Company and its
counsel.
Section 15.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum for any meeting of Holders of
Securities; provided, however, that, if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified percentage in
principal amount of the Outstanding Securities, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any reconvened meeting, such reconvened meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such reconvened meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
15.2(1), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities which
shall constitute a quorum.
Except as limited by Section 9.2, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted only by the affirmative vote of the Required Holders; provided,
however, that, except as limited by Section 9.2, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
Act which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not such Holders were present or represented
at the meeting.
Notwithstanding the foregoing provisions of this Section 15.4, if any
action is to be taken at a meeting of Holders of Securities with respect to any
request, demand, authorization, direction, notice,
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consent, waiver or other Act, which this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities that vote
in favor of such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other Act has been made, given or taken
under this Indenture.
Section 15.5. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of Securities and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.5 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.2(2), in which
case the Company, the Guarantor or the Holders of Securities calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities represented at the meeting.
(3) At any meeting, each Holder of a Security or proxy shall be entitled to
one vote for each $1,000 principal amount of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(4) Any meeting of Holders of Securities duly called pursuant to Section
15.2 at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the Outstanding Securities
represented at the meeting; and the meeting may be held as so adjourned without
further notice.
Section 15.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affi-
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davits of the permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company and the Guarantor, and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE 16
SUBORDINATEd GUARANTEE AND INDEMNITY
Section 16.1. The Guarantee.
The Guarantor hereby unconditionally guarantees, subject to Article 17, to
the Trustee and to each Holder of a Security authenticated and delivered by the
Trustee the due and punctual payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to such Security, when and
as the same shall become due and payable, whether at maturity, upon
acceleration, redemption, repayment or otherwise, in accordance with the terms
of such Security and of this Indenture. In case of the failure of the Company
punctually to pay any such principal, premium, interest or Additional Amounts,
the Guarantor hereby agrees to cause any such payment to be made punctually when
and as the same shall become due and payable, whether at maturity, upon
acceleration, redemption, repayment or otherwise, and as if such payment were
made by the Company. The Guarantee to be endorsed on the Securities shall be
substantially in the form of Exhibit B, which is part of this Indenture.
Section 16.2. Net Payments.
Subject to Article 17, the Guarantor will pay to Holders of the Securities
such Additional Amounts as may be necessary in order that every net payment of
principal, premium, if any, Change of Control Purchase Price, Redemption Price,
or interest or delivery of shares (including cash in lieu of fractional shares)
in respect of any Securities, after deduction or withholding for or on account
of any present or future tax, assessment or other governmental charge imposed
upon or as a result of such payment by (i) Bermuda or Ireland or any political
subdivision or governmental authority thereof or therein having power to tax,
(ii) any jurisdiction from or through which payment is made, or any political
subdivision or governmental authority thereof or therein having the power to
tax, or (iii) any other jurisdiction in which the Guarantor is organized or
otherwise considered to be a resident for tax purposes, or any political
subdivision or governmental authority thereof or therein having the power to tax
will not be less than the amount provided for in such Securities to be then due
and payable; provided, however, that the foregoing obligation to pay Additional
Amounts will not apply
(a) with respect to any Security presented for payment by, or on
behalf of, a Holder who is liable for such taxes, duties, assessments
or other governmental charges in respect of such Securities by reason
of such Holder being a resident, domiciliary or national of, or
engaging in business or maintaining a permanent establishment or being
physically present in, a Relevant Taxing Jurisdiction, or any
political subdivision or taxing authority thereof or therein, or
otherwise having some connection with a Relevant Taxing Jurisdiction,
or any political subdivision or taxing authority thereof or therein,
other than the mere holding of such Securities;
(b) to any tax, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder (i)
presented its Securities for payment more than 30 days after the
Relevant Date, except to the extent that the Holder would have been
entitled to Additional Amounts if it had presented such Securities for
payment on any day within the 30-day period or (ii) presented such
Securities for payment in the Relevant Taxing Jurisdiction, unless
such Securities could not have been presented for payment elsewhere;
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(c) to any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply, following a
request by the Company or the Guarantor to the Holder, with any
certification, identification or reporting requirements concerning the
nationality, residence, identity or connection with a Relevant Taxing
Jurisdiction, or any political subdivision thereof or taxing authority
thereof or therein, of the Holder of the Securities, if compliance is
required by statute or by regulation of a Relevant Taxing
Jurisdiction, or any political subdivision or taxing authority thereof
or therein, as a precondition to exemption from such tax, assessment
or other governmental charge;
(d) with respect to any Holder that has elected not to permit
redemption of its Securities pursuant to Section 11.8;
(e) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;
(f) any tax, assessment or other governmental charge that is
payable other than by withholding or deduction at source; or
(g) any combination of clauses (a) through (f) above.
In addition, the Guarantor will not pay Additional Amounts with respect to
any payment of principal of, or premium, if any, interest or any other amounts
on, any Security to any Holder who is a fiduciary, partnership, limited
liability company or other than the sole beneficial owner of a Security, to the
extent the payment would be required by the laws of the Relevant Taxing
Jurisdiction, or any political subdivision or relevant taxing authority thereof
or therein, to be included in the income for tax purposes of a beneficiary,
partner, member or settlor with respect to such fiduciary or a member of such
partnership or limited liability company or a beneficial owner who would not
have been entitled to such Additional Amounts had it been the Holder.
"Relevant Date" means, when used in this Section 16.2, the date which is
the later of (i) the date on which such payment first becomes due and (ii) if
the full amount of the monies payable has not been received by the Trustee on or
prior to such date, the date that is 21 days after the date on which, the full
amount of such monies having been so received, notice to this effect shall have
been given to the Holders in accordance with this Indenture.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium, interest or any other amounts on, or in
respect of, any Security or the net proceeds received on the sale or conversion
of any Security, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities, at least 10 days prior to the first Interest Payment Date, and at
least 10 days prior to each date of payment of principal or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officer's Certificate of the Guarantor, the Guarantor shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officer's Certificate of the Guarantor instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, interest or any other amounts on the Securities shall be made
to Holders of Securities without withholding for or on account of any tax, fee,
duty, assessment or other govern-
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mental charge described in this Section 16.2. If any such withholding shall be
required, then such Officer's Certificate shall specify by taxing jurisdiction
the amount, if any, required to be withheld on such payments to such Holders of
Securities, and the Guarantor agrees to pay to the Trustee or such Paying Agent
the Additional Amounts required by this Section 16.2. The Guarantor covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on the Guarantor's Officer's Certificate
furnished pursuant to this Section 16.2.
Section 16.3. Guarantee Unconditional, etc.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Security or this Indenture, any failure
to enforce the provisions of any Security or this Indenture, or any waiver,
modification, consent or indulgence granted with respect thereto by the Holder
of such Security or the Trustee, the recovery of any judgment against the
Company or any action to enforce the same, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any such Security or the Indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, any premium and
interest on, and any Additional Amounts with respect to, the Securities and the
complete performance of all other obligations contained in the Securities. The
Guarantor further agrees, to the fullest extent that it lawfully may do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the Maturity of the obligations guaranteed hereby
may be accelerated as provided in Section 5.2 hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or prohibition extant under any
bankruptcy, insolvency, reorganization or other similar law of any jurisdiction
preventing such acceleration in respect of the obligations guaranteed hereby.
Section 16.4. Reinstatement.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time, payment on any Security, in whole or in part, is
rescinded or must otherwise be restored to the Company or the Guarantor upon the
bankruptcy, liquidation or reorganization of the Company or otherwise.
Section 16.5. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of any
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
any premium and interest on, and any Additional Amounts and sinking fund
payments required with respect to, all Securities shall have been paid in full.
Section 16.6. Indemnity.
As a separate and alternative stipulation, the Guarantor unconditionally
and irrevocably agrees that any sum expressed to be payable by the Company under
this Indenture or the Securities, but which is for any reason (whether or not
now known or becoming known to the Company, the Guarantor,
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the Trustee or any Holder of any Security), not recoverable from the Guarantor
on the basis of a guarantee will nevertheless be recoverable from it as if it
were the sole principal debtor and will be paid by it to the Trustee on demand.
This indemnity constitutes a separate and independent obligation from the other
obligations in this Indenture, gives rise to a separate and independent cause of
action and will apply irrespective of any indulgence granted by the Trustee or
any Holder of any Security.
The obligations of the Guarantor to the Holders and to the Trustee pursuant
to the Guarantee and this Indenture are expressly subordinate and subject in
right of payment to the prior payment in full of all Guarantor Senior Debt, to
the extent and in the manner provided in Article 17.
ARTICLE 17
SUBORDINATION
Section 17.1. Guarantee Obligations Subordinated to Guarantor Senior Debt.
(a) Anything in this Indenture to the contrary notwithstanding, the
Guarantor, for itself and its successors, and each Holder by its acceptance of
Securities, agree that the payment of all Guarantee Obligations of the Guarantor
are subordinated, to the extent and in the manner provided in this Article 17,
to the prior payment in full in cash, or such payment duly provided for to the
satisfaction of the holders of Guarantor Senior Debt, of all Guarantor Senior
Debt (whether outstanding on the Issue Date or thereafter incurred).
(b) This Article 17 shall constitute a continuing offer to all Persons who
become holders of, or continue to hold, Guarantor Senior Debt, and such
provisions and each of the definitions used therein are made for the benefit of
the holders of Guarantor Senior Debt and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
Section 17.2. No Payment When Guarantor Senior Debt in Default.
(a) If an EPIL Default occurs and is continuing, then no payment or
distribution of any kind or character shall be made (directly or indirectly) by
or on behalf of the Guarantor or any other Person on its or their behalf with
respect to any Guarantee Obligations or to acquire any of the Securities for
cash or property or otherwise until such EPIL Default (and all other EPIL
Defaults) shall have been cured or waived in accordance with the terms of the
EPIL Agreements or ceased to exist or all EPIL Indebtedness with respect to
which any EPIL Default has occurred and is continuing, shall have been paid in
full in cash.
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Company, the Trustee, any Paying Agent or any Holder when such
payment is prohibited by paragraph (a) of this Section 17.2, such payment shall
be held in trust (and segregated from the funds and other assets of the
respective Person) for the benefit of, and shall be promptly paid over or
delivered to, the holders of Guarantor Senior Debt (pro rata to such holders on
the basis of the respective amount of Guarantor Senior Debt held by such
holders) as their respective interests may appear. The Trustee and any Paying
Agent shall be entitled to rely on information regarding amounts then due and
owing on the Guarantor Senior Debt, if any, received from the holders of
Guarantor Senior Debt or, if such information is not received from such holders,
from the Guarantor and only amounts included in the information provided to the
Trustee and any Paying Agent (as such information may be updated or corrected
from time to time) shall be paid to the holders of Guarantor Senior Debt.
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Section 17.3. Guarantee Obligations Subordinated to Prior Payment of All
Guarantor Senior Debt on Dissolution, Liquidation or Reorganization of the
Guarantor.
(a) Upon any payment or distribution of assets of the Guarantor of any kind
or character, whether in cash, securities, property or other assets, to
creditors upon any total or partial liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors or marshaling of assets
of the Guarantor or in a bankruptcy, examinorship, reorganization, insolvency,
receivership or other similar proceeding relating to the Guarantor or its
property, whether voluntary or involuntary, all Guarantor Senior Debt due or to
become due shall first be paid in full in cash, or such payment duly provided
for to the satisfaction of the holders of Guarantor Senior Debt, before the
Holders shall be entitled to receive any payment or distribution of any kind or
character on account of any Guarantee Obligations or for the acquisition of any
of the Securities for cash or property or otherwise. Upon any such liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors, marshaling of assets, bankruptcy, examinorship, reorganization,
insolvency, receivership or other similar proceeding, any payment or
distribution of assets of the Guarantor of any kind or character, whether in
cash, securities, property or other assets, to which the Holders or the Trustee
would be entitled, except for the provisions hereof, shall be paid by the
Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Holders or by the
Trustee if received by them, directly to the holders of Guarantor Senior Debt
(pro rata to such holders on the basis of the respective amounts of Guarantor
Senior Debt held by such holders), as their respective interests may appear, for
application to the payment of Guarantor Senior Debt remaining unpaid until all
such Guarantor Senior Debt has been paid in full in cash after giving effect to
any concurrent payment or distribution to holders of Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or on
behalf of the Guarantor, as proceeds of security or enforcement of any right of
setoff or otherwise) is invalidated or declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, assignee for the benefit of creditors, agent or
other Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, assignee for the
benefit of creditors, agent or other Person, the Guarantor Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred and Article 17 shall be
reinstated and continue in full force and effect.
It is further agreed that any diminution (whether pursuant to court decree
or otherwise, including without limitation for any of the reasons described in
the preceding sentence) of the Guarantor's obligation to make any distribution
or payment pursuant to any Guarantor Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Guarantor Senior Debt in cash, shall have no force or effect
for purposes of the subordination provisions contained in this Article 17, with
any turnover of payments as otherwise calculated pursuant to this Article 17 to
be made as if no such diminution had occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Guarantor of any kind or character, whether in
cash, securities, property or other assets, shall be received by the Company,
the Trustee, the Paying Agent or any Holder when such payment or distribution is
prohibited by this Section 17.3, such payment or distribution shall be held in
trust (and segregated from the funds and other assets of the respective Person)
for the benefit of, and shall be paid over or delivered to, the holders of
Guarantor Senior Debt (pro rata to such holders on the basis of the respective
amount of Guarantor Senior Debt held by such holders), as their respective
interests may appear, for application to the payment of Guarantor Senior Debt
remaining unpaid until all such Guarantor Senior Debt
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has been paid in full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Debt.
(d) The consolidation or amalgamation of the Guarantor with, or the merger
of the Guarantor into another Corporation or the liquidation or dissolution of
the Guarantor following the conveyance or transfer of it properties and assets
as an entirety or substantially as an entirety to another Corporation upon the
terms and conditions provided in this Indenture (including, without limitation,
Section 8.3) and as long as permitted under the terms of the EPIL Agreements
shall not be deemed a liquidation, dissolution, winding-up, or reorganization
for the purposes of this Section if such other Corporation shall, as a part of
such consolidation, amalgamation, merger, conveyance or transfer, assume the
Guarantee of the Guarantor hereunder in accordance with Article 8.
Section 17.4. Payments May Be Paid Prior to Dissolution.
Subject to Section 10.13, nothing contained in this Article 17 shall
prevent (i) the Guarantor, except as specified in Sections 17.2, 17.3 and 17.10,
from making payments at any time for the purpose of making payments on Guarantee
Obligations, or from depositing with the Trustee or any Paying Agent, any monies
for such payments, or (ii) in the absence of actual knowledge by the Trustee or
any Paying Agent that a given payment would be prohibited by Section 17.2, 17.3
or 17.10, the application by the Trustee and any Paying Agent of any monies
deposited with them for the purpose of making such payments on Guarantee
Obligations to the Holders entitled thereto (provided that, notwithstanding the
foregoing, the Holders receiving any payments made in contravention of Section
17.2, 17.3 or 17.10 (and such payments) shall otherwise be subject to the
provisions of Sections 17.2, 17.3 and 17.10). The Guarantor shall give prompt
written notice to the Trustee and any Paying Agent of any EPIL Default or any
liquidation, dissolution, winding-up, reorganization, assignment for the benefit
of creditors, marshaling of assets, bankruptcy, examinorship, reorganization,
insolvency, receivership or other similar proceeding, of such Guarantor,
although any delay or failure to give any such notice shall have no effect on
the subordination provisions contained herein.
Section 17.5. Holders To Be Subrogated to Rights of Holders of Guarantor
Senior Debt.
Subject to the prior payment in full in cash of all Guarantor Senior Debt,
the Holders shall be subrogated to the rights of the holders of Guarantor Senior
Debt of the Guarantor to receive payments or distributions of cash, securities,
property or other assets of the Guarantor applicable to such Guarantor Senior
Debt until all amounts owing on or in respect of the Guarantee Obligations shall
be paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of such Guarantor Senior Debt by or on behalf of
the Guarantor, or by or on behalf of the Holders by virtue of this Article 17,
which otherwise would have been made to the Holders shall, as between the
Guarantor and the Holders, be deemed to be a payment by the Guarantor to or on
account of such Guarantor Senior Debt, it being understood that the provisions
of this Article 17 are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Guarantor
Senior Debt, on the other hand.
Section 17.6. Guarantee Obligations of the Guarantor Unconditional.
Subject to Section 10.13, nothing contained in this Article 17 is intended
to or shall impair, as among the Guarantor, its creditors other than the holders
of Guarantor Senior Debt, and the Holders, the obligation of the Guarantor,
which is absolute and unconditional, to pay to the Holders all amounts due and
payable under the Guarantee as and when the same shall become due and payable in
accordance with its terms, or is intended to or shall affect the relative rights
of the Holders and creditors of the Guarantor other than the holders of the
Guarantor Senior Debt, nor shall anything herein or therein
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prevent any Holder or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article 17 of the holders of Guarantor Senior
Debt in respect of cash, securities, property or other assets of the Guarantors
received upon the exercise of any such remedy.
Nothing in this Indenture shall be construed to mean that any Guarantee
Obligation is subordinated to any Indebtedness of the Guarantor (other than the
Guarantor Senior Debt as provided in this Article 17), including, without
limitation, the Guarantor's guarantee of the Athena Notes.
Section 17.7. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Guarantor referred to in
this Article 17, the Trustee, subject to the provisions of Article 6, and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any liquidation, dissolution, winding-up,
reorganization, assignment for the benefit of creditors, marshaling of assets,
bankruptcy, examinorship, reorganization, insolvency, receivership or other
similar proceeding, is pending, or upon a certificate of the receiver, trustee
in bankruptcy, liquidating trustee, receiver, assignee for the benefit of
creditors, agent or other similar Person making such payment or distribution,
delivered to the Trustee or the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Guarantor Senior Debt and other Indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 17.
Section 17.8. Subordination Right Not Impaired by Acts or Omissions of the
Guarantor or Holders of Guarantor Senior Debt.
No right of any present or future holders of any Guarantor Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Guarantor
or by any act or failure to act by any such holder, or by any noncompliance by
the Guarantor with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Guarantor Senior Debt may, at any time and from time to time, without
the consent of or notice to the Trustee, without incurring responsibility to the
Trustee or the Holders and without impairing or releasing the subordination
provided in this Article 17 or the obligations hereunder of the Holders to the
holders of Guarantor Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement in
any manner Guarantor Senior Debt, or any instrument evidencing the same or any
of the EPIL Agreements, (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Guarantor Senior Debt, (iii)
release any Person liable in any manner for the payment or collection of
Guarantor Senior Debt, (iv) exercise or refrain from exercising any rights
against the Guarantor and any other Person and (v) any waiver of the payment,
performance or observance of any of the obligations, conditions, covenants or
agreements contained in any of the EPIL Agreements, or any other waiver,
consent, extension, indulgence, compromise, settlement, release or other action
or inaction under or in respect of any of the EPIL Agreements.
Section 17.9. Holders Authorize Trustee To Effect Subordination of
Guarantee Obligations.
Each Holder, by its acceptance of the Guarantee Obligations, authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as be-
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tween the holders of Guarantor Senior Debt and the Holders, the subordination
provided in this Article 17, and appoints the Trustee its attorney-in-fact for
such purposes, including, in the event of any liquidation, dissolution,
winding-up, reorganization of the Guarantor (whether in bankruptcy,
reorganization, insolvency, receivership, reorganization or other similar
proceedings or upon an assignment for the benefit of credits, marshalling of
assets or otherwise) tending towards liquidation of the business and assets of
the Guarantor, the filing of a claim for the unpaid balance under its Guarantee
Obligations and accrued interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Guarantor Senior Debt are
hereby authorized to have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the Holders. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Guarantor Senior Debt
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Guarantee Obligations or the rights of any Holder, or to authorize the Trustee
or the holders of Guarantor Senior Debt to vote in respect of the claim of any
Holder in any such proceeding.
Section 17.10. No Payment on Securities When Guarantor Senior Debt in
Default.
(a) If any EPIL Default occurs and is continuing, then no payment or
distribution of any kind or character shall be made (directly or indirectly) by
or on behalf of the Company or any other Person on its or their behalf with
respect to any Obligations or to acquire any of the Securities for cash or
property or otherwise, and the Guarantor will not permit the Company to make any
such payment, distribution or acquisition until such EPIL Default (and all other
EPIL Defaults) shall have been cured or waived in accordance with the EPIL
Agreements or ceased to exist or all EPIL Indebtedness with respect to which any
EPIL Default has occurred and is continuing, shall have been paid in full in
cash.
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee, any Paying Agent or any Holder when such payment is
prohibited by paragraph (a) of this Section 17.10, such payment shall be held in
trust (and segregated from the funds and other assets of the respective Person)
for the benefit of, and shall be promptly paid over or delivered to, the holders
of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amount of Guarantor Senior Debt held by such holders) as their
respective interests may appear. The Trustee and any Paying Agent shall be
entitled to rely on information regarding amounts then due and owing on the
Guarantor Senior Debt, if any, received from the holders of Guarantor Senior
Debt or, if such information is not received from such holders, from the
Guarantor and only amounts included in the information provided to the Trustee
and any Paying Agent (as such information may be updated or corrected from time
to time) shall be paid to the holders of Guarantor Senior Debt.
Section 17.11. Payments May Be Paid Prior to EPIL Default.
Subject to Section 10.13, nothing contained in this Article 17 shall
prevent (i) the Company, except as specified in Section 17.10, from making
payments at any time for the purpose of making payments of principal of, and
interest on or Additional Amounts with respect to the Obligations, or from
depositing with the Trustee or any Paying Agent, any monies for such payments,
or (ii) in the absence of actual knowledge by the Trustee or any Paying Agent
that a given payment would be prohibited by Sections 17.2, 17.3, and 17.10, the
application by the Trustee and any Paying Agent of any monies deposited with
them for the purpose of making such payments of principal of, interest on or
Additional Amounts with respect to the Obligations to the Holders entitled
thereto (provided that, notwithstanding the foregoing, the Holders receiving any
payments made in contravention of Section 17.2, 17.3 or 17.10 (and such
payments) shall otherwise be subject to the provisions of Sections 17.2, 17.3
and 17.10). The Guarantor
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shall give prompt written notice to the Trustee and any Paying Agent of any EPIL
Default, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein. Any holder of any of
the EPIL Notes may, but is not required to, give written notice to the Trustee
and any Paying Agent of any EPIL Default, although any delay or failure to give
any such notice shall have no effect on the subordination provisions contained
herein.
Section 17.12. Right Not Impaired by Acts or Omissions of the Company or
Holders of Guarantor Senior Debt.
No right of any present or future holders of any Guarantor Senior Debt to
enforce the provisions of this Article 17 as provided herein shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Guarantor Senior Debt may, at any time and from time to time, without
the consent of or notice to the Trustee, without incurring responsibility to the
Trustee or the Holders and without impairing or releasing the subordination
provided in this Article 17 or the obligations hereunder of the Holders to the
holders of Guarantor Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Guarantor Senior Debt, or otherwise amend or supplement in
any manner Guarantor Senior Debt, or any instrument evidencing the same or any
of the EPIL Agreements, (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Guarantor Senior Debt, (iii)
release any Person liable in any manner for the payment or collection of
Guarantor Senior Debt, (iv) exercise or refrain from exercising any rights
against the Company and any other Person and (v) any waiver of the payment,
performance or observance of any of the obligations, conditions, covenants or
agreements contained in any of the EPIL Agreements, or any other waiver,
consent, extension, indulgence, compromise, settlement, release or other action
or inaction under or in respect of any of the EPIL Agreements.
Section 17.13. This Article 17 Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on the
Guarantee Obligations by reason of any provision of this Article 17 will not be
construed as preventing the occurrence of an Event of Default.
Section 17.14. Amendments or Modifications to Article 17.
Notwithstanding anything to the contrary contained in this Indenture, no
amendment or modification to any provision of this Article 17 or the related
definitions used herein shall be permitted without the consent of the Required
EPIL Holders.
Section 17.15. No Fiduciary Duty of Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Guarantor Senior Debt, and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to the Holders, the Guarantor,
the Company or any other Person, cash, securities, property or other assets to
which any holders of Guarantor Senior Debt shall be entitled by virtue of this
Article 17 or otherwise. Nothing in this Section 17.15 shall affect the
obligation of any other such Person to hold such payment in trust (and
segregated from the funds and other assets of the respective Person) for the
benefit of, and to pay over or deliver promptly such payment to, the holders of
Guarantor Senior Debt.
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Section 17.16. Conversions Not Impaired.
For purposes of this Article 17, the conversion of the Securities
(including the payment of cash in lieu of fractional shares) in accordance with
Article 18 shall not be deemed to constitute a payment or distribution by or on
behalf of the Guarantor or any other Person on its or their behalf with respect
to any Guarantor Obligation or an acquisition of the Securities for cash
property or otherwise. Notwithstanding anything to the contrary in this Article
17, nothing in this Article 17 or elsewhere in this Indenture or in the
Securities shall impair, as among the Guarantor, its creditors other than the
Holders of Guarantor Senior Debt, and the Holders, the right, which is absolute
and unconditional, of the Holder of any Security to convert such Security in
accordance with Article 18.
ARTICLE 18
CONVERSION
Section 18.1. Conversion Right.
Subject to the terms and conditions set forth herein and in the Securities,
a Holder of a Security may convert the principal amount of such Security (or any
portion thereof equal to $1,000 or any integral multiple of $1,000 in excess
thereof) into Shares at any time on or after the opening of business on the
120th day after the Issue Date and on or prior to the close of business on the
seventh Business Day prior to the Stated Maturity Date of the Securities, at the
Conversion Ratio then in effect; provided, however, that if such Security is (i)
called for redemption pursuant to Article 11, such conversion right shall
terminate at the close of business on the seventh Business Day preceding the
Redemption Date for such Security or such earlier date as the Holder presents
such Security for redemption (unless the Company shall default in making the
redemption payment when due, in which case the conversion right shall terminate
at the close of business on the date such Event of Default is cured and such
Security is redeemed) or (ii) submitted or presented for purchase pursuant to
Article 13, such conversion right shall terminate at the close of business on
the Change of Control Purchase Date for such Security or such earlier date as
the Holder presents such Security for redemption or for purchase (unless the
Guarantor shall default in making the Change of Control Purchase Price payment
when due, in which case the conversion right shall terminate at the close of
business on the date such Event of Default is cured and such Security is
purchased). The initial Conversion Ratio (the "Conversion Ratio") is set forth
in paragraph [ ] of the Securities and is subject to adjustment as provided in
this Article 18.
Each Holder's right to convert Securities into Shares is subject to the
Guarantor's right to elect to instead pay such Holder the amount of cash set
forth in the next succeeding sentence, in lieu of delivering such Shares (a
"Cash Alternative"); provided, however, that if such payment of cash is not
permitted pursuant to the provisions of this Indenture or the provisions of any
other agreement or instrument to which the Guarantor is a party or by which it
is bound or otherwise, the Guarantor shall deliver Shares (and cash in lieu of
fractional Shares) in accordance with this Article 18, whether or not the
Guarantor has delivered a notice pursuant to Section 18.2 that it has elected to
pay a Cash Alternative. The amount of cash to be paid, if the Guarantor elects a
Cash Alternative, for each $1,000 in principal amount of a Security upon
conversion, shall be equal to the Current Market Price of an ADS on the ninth
Trading Day following the Conversion Date, multiplied by the Conversion Ratio in
effect on such Trading Day (a "Cash Alternative Payment"). Such payment shall be
effected not later than ten Trading Days following the relevant Conversion Date.
If the payment has not been effected by such date, the right of the Holder of
Securities to receive delivery of Shares shall continue notwithstanding the
conditions of this paragraph. If the Guarantor elects to pay a Cash Alternative
to any Holder, it shall notify the Trustee and such Holder of such election
within three Trading Days after the Conversion Date. Except as otherwise
provided in this Section 18.1, the Guarantor may not revoke such election once
such notification has been provided.
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The Guarantor shall not pay a Cash Alternative upon the conversion of any
Security pursuant to the terms of this Section 18.1 (other than cash in lieu of
fractional shares pursuant to Section 18.3), if there has occurred (prior to, on
or after, as the case may be, the Conversion Date or the date on which the
Guarantor delivers its notice electing to pay a Cash Alternative pursuant to
Section 18.2) and is continuing an Event of Default (other than a default in the
payment of such Cash Alternative on such Securities); provided, however, that
this sentence shall not apply in the event that an Event of Default occurs after
such Cash Alternative is paid.
The Guarantor shall not deliver a notice electing to, and shall not,
directly or indirectly, pay a Cash Alternative at any time any Existing EPIL
Indebtedness is outstanding.
A Holder may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.
A Security in respect of which a Holder has delivered a Change of Control
Purchase Notice pursuant to Section 13.1(c) exercising the option of such Holder
to require the Company to purchase such Security may be converted only if such
Change of Control Purchase Notice is withdrawn by a written notice of withdrawal
delivered to a Paying Agent or to the Office or Agency referred to in Section
10.2 prior to the close of business on the Business Day immediately preceding
the Change of Control Purchase Date in accordance with Section 13.2.
A Holder of Securities is not entitled to any rights of a holder of Shares
until such Holder has converted its Securities into Shares, and only to the
extent such Securities are deemed to have been converted into Shares pursuant to
this Article 18.
If the Guarantor is party to a consolidation, merger or binding share
exchange or a sale or conveyance as an entirety or substantially as an entirety
of the property and assets of the Guarantor which is otherwise permitted under
the terms hereof, pursuant to which the Ordinary Shares are converted into the
right to receive other securities, cash or other assets, then, subject to the
second proviso of this paragraph, the right to convert a Security into Shares
will be transformed into a right to convert such Security for the kind and
amount of securities, cash or other assets which the Holder would have received
if the Holder had converted such Security immediately prior to such
consolidation, merger, exchange or transfer; provided that, if such
consolidation, merger, exchange or transfer constitutes a Change of Control
pursuant to which, during the 90 days following such Change of Control, the
Conversion Ratio is determined as provided in Section 18.10, the Holder, in
connection with any conversion occurring during such 90 day period, shall be
deemed to have converted such Holder's Securities at the Conversion Ratio
determined in accordance with Section 18.10; provided, further, that, if any
part of the Total Consideration paid to the holders of Ordinary Shares in
connection with any Change of Control consists of Listed Equity Securities, the
right to convert a Security into Shares will, from and after the 91st day after
such Change of Control, be transformed into a right to convert such Security
into a number of such Listed Equity Securities equal to the sum of (i) the
number of Listed Equity Securities which the Holder would have received if the
Holder had converted such Security immediately prior to such Change of Control
and (ii) a number of Listed Equity Securities having a Market Value on the date
of such Change of Control equal to the fair market value of the Total
Consideration (excluding Listed Equity Securities referred to in clause (i) of
this sentence) which the Holder would have received if the Holder had converted
such Security immediately prior to such Change of Control. For purposes of this
paragraph, fair market value shall be reasonably determined in good faith by the
Board of Directors of the Guarantor, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officer's
Certificate of the Guarantor delivered to the Trustee.
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Section 18.2. Conversion Procedure.
To convert a Security, a Holder must (i) complete and manually sign the
conversion notice on the back of the Security and deliver such notice to a
Conversion Agent, (ii) surrender the Security to a Conversion Agent and (iii)
pay any tax required pursuant to Section 18.4. The date on which the Holder
satisfies all those requirements is the conversion date (the "Conversion Date").
Unless the Guarantor shall have notified the Trustee and the Holder that the
Guarantor has elected to pay such Holder a Cash Alternative pursuant to Section
18.1, the Guarantor shall deliver to the Holder as soon as practicable, but in
any event no later than the seventh Business Day following the Conversion Date,
through a Conversion Agent, a certificate for the number of whole Shares
issuable upon the conversion, payment for accrued interest on such Security, to
the extent required by this Section 18.2, and, if applicable, cash in lieu of
any fractional shares pursuant to Section 18.3. Except as provided in Section
18.1, if the Guarantor shall have notified the Holder of the Guarantor's
election to pay such Holder a Cash Alternative, the Guarantor shall deliver to
the Holder surrendering such Security the Cash Alternative Payment with respect
to such Security not later than ten Trading Days following such Conversion Date.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such Securities may be
surrendered for conversion in accordance with the Applicable Procedures as in
effect from time to time.
The person in whose name the share certificate is registered shall be
treated as a shareholder of record on and after the Conversion Date; provided,
however, that no surrender of a Security on any date when the share transfer
books of the Guarantor shall be closed shall be effective to constitute the
Person or Persons entitled to receive the Shares upon such conversion as the
record holder or holders of such Shares on such date, but such surrender shall
be effective to constitute the Person or Persons entitled to receive such Shares
as the record holder or holders thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are open;
provided, further, that such conversion shall be at the Conversion Ratio in
effect on the Conversion Date, as if the share transfer books of the Guarantor
had not been closed. Upon conversion of a Security, such person shall no longer
be a Holder of such Security. No payment or adjustment will be made for
dividends on any shares except as provided in this Article 18.
Securities so surrendered for conversion (in whole or in part) during the
period from the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date (excluding Securities or
portions thereof called for redemption or presented for purchase on a Redemption
Date or Change of Control Purchase Date, as the case may be, during the period
beginning at the close of business on a Regular Record Date and ending at the
opening of business on the first Business Day after the next succeeding Interest
Payment Date, or if such interest payment date is not a Business Day, the second
such Business Day) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security. Except as otherwise provided in this Section 18.2,
no payment or adjustment will be made for accrued interest on a converted
Security. If the Company defaults in the payment of interest payable on such
Interest Payment Date, the Company shall promptly repay such funds to such
Holder.
Nothing in this Section shall affect the right of a Holder in whose name
any Security is registered at the close of business on a Regular Record Date to
receive the interest payable on such Security on the related Interest Payment
Date in accordance with the terms of this Indenture and the Securities. If a
Holder converts more than one Security at the same time, the number of Shares
issuable upon the conversion shall be based on the aggregate principal amount of
Securities converted.
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Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security equal in principal amount to the unconverted portion of the Security
surrendered.
Section 18.3. Fractional Ordinary Shares and ADSs.
The Guarantor will not issue fractional Ordinary Shares or ADSs upon
conversion of a Security, and, in lieu of such fractional Ordinary Shares or
ADSs, the Guarantor will, at its option, either (a) pay a cash adjustment in
Dollars equal to the market value of such fractional Ordinary Shares or ADSs or
(b) round up the number of ADSs or Ordinary Shares, as the case may be, issuable
upon conversion of any Security to the nearest whole Share. The market value of
a fractional Ordinary Share or ADS shall be determined to the nearest 1/100th of
a share by multiplying the Current Market Price, on the last Trading Day
immediately preceding the Conversion Date, of a full ADS by the fractional
amount and rounding the product to the nearest whole cent.
Section 18.4. Taxes on Conversion.
If a Holder converts a Security, the Guarantor shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of Shares upon such
conversion. However, the Holder shall pay any such tax which is due because the
Holder requests the Shares to be issued in a name other than the Holder's name.
A Conversion Agent may refuse to deliver the certificates representing the
Shares being issued in a name other than the Holder's name until such Conversion
Agent receives a sum sufficient to pay any tax which will be due because the
Shares are to be issued in a name other than the Holder's name. Nothing herein
shall preclude any tax withholding required by law or regulations.
Section 18.5. Guarantor To Provide Stock.
The Guarantor shall, prior to the issuance of any Securities hereunder, and
from time to time as may be necessary, reserve, out of its authorized but
unissued Ordinary Shares, or otherwise procure or make available, a sufficient
number of Ordinary Shares (and shall provide for an appropriate number of ADSs,
giving effect to the number of Ordinary Shares then represented by each ADS) to
permit the conversion of all the Securities into Shares. Such Ordinary Shares
shall be free from preemptive rights and there shall be no restrictions on the
ability of the Board of Directors of the Guarantor to issue such Ordinary
Shares.
All Shares delivered upon conversion of the Securities shall be newly
issued shares or treasury shares, shall be duly authorized, validly issued and
fully paid and nonassessable and shall be free from preemptive rights and free
and clear of any lien or adverse claim created or incurred by the Guarantor, the
Company or any of their respective Affiliates.
The Guarantor will endeavor promptly to comply with all Federal and state
securities laws regulating the offer and delivery of Shares upon conversion of
Securities, if any, and will list or cause to have quoted such Shares on each
securities exchange or in the over-the-counter market or such other market on
which the Ordinary Shares and ADSs are then listed or quoted.
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Section 18.6. Adjustment for Change in Capital Stock.
If, after the Issue Date, whether or not such Ordinary Shares are
represented by ADSs, the Guarantor:
(1) pays a dividend or makes a distribution on its Ordinary Shares
payable in Ordinary Shares;
(2) subdivides its outstanding Ordinary Shares into a greater number
of shares;
(3) combines its outstanding Ordinary Shares into a smaller number of
shares;
(4) pays a dividend or makes a distribution to all or substantially
all holders of its Ordinary Shares on its Ordinary Shares in shares of its
Capital Stock (other than ADSs or Ordinary Shares or rights, warrants or
options to subscribe for or purchase its Capital Stock); or
(5) issues by reclassification of its Ordinary Shares any shares of
its Capital Stock (other than rights, warrants or options to subscribe for
or purchase its Capital Stock),
then the Conversion Ratio in effect immediately prior to such action shall be
adjusted so that the Holder of a Security thereafter converted may receive the
number of Ordinary Shares (or ADSs) or other units of Capital Stock of the
Guarantor which such Holder would have owned immediately following such action
if such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If, after an adjustment, a Holder of a Security upon conversion of such
Security may receive shares or other units of two or more classes or series of
Capital Stock of the Guarantor, the Conversion Ratio shall thereafter be subject
to adjustment upon the occurrence of an action taken with respect to any such
class or series of Capital Stock as is contemplated by this Article 18 with
respect to the Ordinary Shares, on terms comparable to those applicable to
Ordinary Shares in this Article 18.
Section 18.7. Adjustment for Rights Issue. If, after the Issue Date, the
Guarantor distributes any rights, warrants or options to all holders of its
Ordinary Shares entitling them, for a period expiring within 60 days after the
Record Date (as defined in this Section 18.7), to subscribe for or purchase ADSs
or Ordinary Shares at a price per Share less than the Average Sale Price
(converted, if necessary, from the currency in which such purchase may be made
to Dollars at the mid-market spot exchange rate as of the close of business on
the Business Day immediately preceding the Record Date, as published in a widely
recognized source selected in good faith by the Guarantor), the Conversion Ratio
in effect immediately prior to the close of business on the Record Date shall be
adjusted in accordance with the following formula:
R' = R x (O + N)
-----------------
(O + (N x P) / M)
where:
R' = the adjusted Conversion Ratio.
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R = the Conversion Ratio in effect
immediately prior to the close of
business on the Record Date.
O = the number of Ordinary Shares
(whether or not represented by ADSs)
outstanding at the close of business
on the Record Date.
N = the number of additional Ordinary
Shares (whether or not represented
by ADSs) that may be offered upon
exercise of the rights, warrants or
options offered pursuant to the
distribution.
P = the subscription or purchase price
per share of such additional
Ordinary Shares.
M = the Average Sale Price on the
Record Date.
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the rights, warrants or
options to which this Section 18.7 applies (for purposes of this Section 18.7
only, the "Record Date"). If all of the ADSs or Ordinary Shares subject to such
rights, warrants or options have not been issued when such rights, warrants or
options expire, then the Conversion Ratio shall promptly be readjusted to the
Conversion Ratio which would then be in effect had the adjustment upon the
issuance of such rights, warrants or options been made on the basis of the
actual number of ADSs or Ordinary Shares issued upon the exercise of such
rights, warrants or options.
No adjustment shall be made under this Section 18.7 if the application of
the formula stated above in this Section 18.7 would result in a value of R' that
is equal to or less than the value of R.
Section 18.8. Adjustment for Other Distributions.
If, after the Issue Date, the Guarantor distributes to all holders of its
Ordinary Shares any of its assets, cash (including, without limitation, ordinary
cash dividends and extraordinary cash dividends) or debt securities or any
rights, warrants or options to purchase securities of the Guarantor (including
securities of any Person other than the Guarantor, but excluding dividends or
distributions referred to in Section 18.6 and distributions of rights, warrants
or options referred to in Section 18.7), the Conversion Ratio in effect
immediately prior to the Record Date (as defined in this Section 18.8) shall be
adjusted in accordance with the following formula:
R' = R x M
-----
M - F
where:
R' = the adjusted Conversion Ratio.
R = the current Conversion Ratio in
effect immediately prior to the
Record Date.
M = the Average Sale Price on the
Record Date.
F = the cash, if any, and the fair
market value on the Record Date of
the assets, securities, rights,
warrants or options to be
distributed in respect of each
Ordinary Share in the distribution
to which
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this Section 18.8 is being
applied (including, in the case of
cash dividends or other cash
distributions giving rise to an
adjustment, all such cash
distributed concurrently).
For purposes of this Section 18.8, fair market value shall be reasonably
determined in good faith by the Board of Directors of the Guarantor, whose
determination shall be conclusive evidence of such fair market value and which
shall be evidenced by an Officer's Certificate of the Guarantor delivered to the
Trustee.
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the distribution to which
this Section 18.8 applies (for purposes of this Section 18.8 only, the "Record
Date").
The adjustment under this Section 18.8 shall be made irrespective of
whether the application of the formula state above in this Section 18.8 would
result in a value of R' that is less than the value of R.
Section 18.9. Adjustment for Share Purchase.
Subject to the last paragraph of this Section 18.9, in the event that,
after the Issue Date, a tender offer made by the Guarantor or any of its
Subsidiaries for all or a portion of the Ordinary Shares shall expire and such
tender offer (including any amendment thereto in effect immediately prior to the
expiration thereof) shall require the payment to shareholders of consideration
per Ordinary Share having a fair market value that, as of the last time (the
"Expiration Time") tenders may be made pursuant to such tender, exceeds 105% of
the Sale Price on the Trading Day next succeeding the Expiration Time, the
Conversion Ratio in effect immediately prior to the Expiration Time shall be
adjusted in accordance with the following formula:
R' = R x F + (N x M)
-----------
O x M
where:
R' = the adjusted Conversion Ratio.
R = the current Conversion Ratio in
effect immediately prior to the
close of business on the date of the
Expiration Time.
M = the Sale Price on the Trading Day
next succeeding the Expiration Time.
O = the number of Ordinary Shares
outstanding (including all Ordinary
Shares so tendered) at the
Expiration Time.
N = the number of Ordinary Shares
outstanding (less any Purchased
Shares) at the Expiration Time.
F = the fair market value of the
aggregate consideration payable to
holders of Ordinary Shares based
upon the acceptance (up to a maximum
specified in the terms of the tender
offer) of all Ordinary Shares
validly tendered and not withdrawn
as of the Expira-
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tion Time (the Ordinary Shares so
accepted, up to any such maximum,
being referred to as the "Purchased
Shares").
The adjustment shall become effective immediately prior to the opening of
business on the day after the Expiration Time.
For purposes of this Section 18.9, fair market value shall be reasonably
determined in good faith by the Board of Directors of the Guarantor, whose
determination shall be conclusive evidence of such fair market value and which
shall be evidenced by an Officer's Certificate of the Guarantor delivered to the
Trustee.
No adjustment shall be made under this Section 18.9 if the application of
the formula stated above in this Section 18.9 would result in a value of R' that
is equal or less than the value of R.
For purposes of this Section 18.9, the term "tender offer" shall mean and
include both tender offers and exchange offers (within the meaning of U.S.
Federal securities laws), all references to "purchases" of shares in tender
offers (and all similar references) shall mean and include both the purchase of
shares in tender offers and the acquisition of shares pursuant to exchange
offers, and all references to "tendered shares" (and all similar references)
shall mean and include shares tendered in both tender offers and exchange
offers.
In the event that the Guarantor is obligated to purchase Ordinary Shares
pursuant to any such tender offer, but the Guarantor is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Conversion Ratio shall again be adjusted to be the
Conversion Ratio which would have been in effect based upon the number of shares
actually purchased.
Section 18.10. Adjustment upon Change of Control.
Upon any conversion occurring on a Conversion Date within 90 days following
a Change of Control in connection with which the Cash Consideration constitutes
(x) in the case of a Change of Control occurring before March 16, 2005, any part
of the Total Consideration or (y) in the case of a Change of Control occurring
after March 16, 2005, more than 35 % of the Total Consideration, the Conversion
Ratio shall be determined as follows:
Conversion Date Conversion Ratio
On or before o, 2004 ............................. o
Thereafter, but on or before, o, 2005 ............ o
Thereafter, but on or before, o, 2006 ............ o
Thereafter, but on or before, o, 2007 ............ o
Thereafter, but on or before, o, 2008 ............ o
Thereafter, and until the Stated Maturity ........ o
The conversion prices determined pursuant to this Section 18.10 shall be
subject to adjustment on the terms set forth in this Article 18.
Section 18.11. Upward Adjustment at the Option of the Guarantor.
The Guarantor from time to time may increase the Conversion Ratio by any
amount for any period of time if the period is at least 20 days and if the
increase is irrevocable during the period, if
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the Board of Directors of the Guarantor determines that such increase would be
in the best interest of the Guarantor and the Guarantor provides at least 15
days' prior written notice of any such increase in the Conversion Ratio to the
Trustee and the Holders. The notice shall state the increased Conversion Ratio
and the period it will be in effect, which period shall be at least 20 days.
Section 18.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Ratio shall be required unless the
adjustment would require an increase or decrease of at least 1% (e.g., if the
Conversion Ratio is 4, an increase or decrease of .04 (1% of 4)) in the
Conversion Ratio. Any adjustments that are not made shall be carried forward and
taken into account in any subsequent adjustment.
All calculations under this Article 18 shall be made to the nearest cent or
to the nearest 1/100th of a share, as the case may be, with one-half of a cent
and 5/1,000ths of a share being rounded upwards.
Section 18.13. When No Adjustment Required.
No adjustment need be made for a transaction referred to in Section18.6,
18.7, 18.8, 18.9 or 18.16 if Holders are to participate in the transaction on a
basis and with notice that the Board of Directors of the Guarantor determines to
be fair and appropriate in light of the basis and notice on which holders of
ADSs or Ordinary Shares participate in the transaction. Such participation by
Holders may include participation upon conversion provided that an adjustment
shall be made at such time as the Holders are no longer entitled to participate.
No adjustment need be made for rights to purchase Ordinary Shares or ADSs
pursuant to a Company or Guarantor plan for reinvestment of dividends or
interest.
No adjustment need be made for a change in the par value or no par value of
the Ordinary Shares.
To the extent the Securities become convertible into cash pursuant to the
terms of this Article 18, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
Notwithstanding any provision to the contrary in this Indenture, no
adjustment or increase pursuant to Section 18.11 shall be made in the Conversion
Ratio to the extent, but only to the extent, such adjustment results in the
Conversion Price being less than the par value of the Ordinary Shares.
Section 18.14. Notice of Adjustment.
Whenever the Conversion Ratio is adjusted, the Guarantor shall promptly
mail to the Holders a notice of the adjustment. The Guarantor shall file with
the Trustee such notice and an Officer's Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. Unless and until the
Trustee shall receive an Officer's Certificate setting forth an adjustment of
the Conversion Ratio, the Trustee may assume without inquiry that the Conversion
Ratio has not been adjusted and that the last Conversion Ratio of which it has
knowledge remains in effect. The certificate shall be conclusive evidence that
the adjustment is correct. The Trustee shall not be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
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Section 18.15. Notice of Certain Transactions.
If:
(a) the Guarantor takes any action that would require an adjustment in
the Conversion Ratio pursuant to this Article 18; or
(b) the Guarantor takes any action that would require a supplemental
indenture pursuant to Section 18.16; or
(c) there is a liquidation or dissolution of the Guarantor,
then the Guarantor shall mail to Holders and file with the Trustee a notice
stating the proposed record date for a dividend or distribution of the proposed
effective date of a subdivision, combination, reclassification, consolidation,
merger, binding share exchange, sale, conveyance, liquidation or dissolution.
The Guarantor shall file and mail the notice at least 15 days before such date.
Failure to file or mail the notice or any defect in it shall not affect the
validity of the transaction referred to in clause (a), (b) or (c) of this
Section 18.15.
Section 18.16. Reorganization of Company; Special Distributions.
If any of the following shall occur, namely: (a) any reclassification or
change of Ordinary Shares or ADSs issuable upon conversion of the Securities
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination, or any
other change for which an adjustment is provided in this Article 18); (b) any
consolidation, merger or binding share exchange to which the Guarantor is a
party other than a merger or binding share exchange in which the Guarantor is
the continuing corporation and which does not result in any reclassification of,
or change (other than in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination) in,
outstanding Ordinary Shares; or (c) any sale or conveyance as an entirety or
substantially as an entirety of the property and assets of the Guarantor,
directly or indirectly, to any Person, then the Guarantor, or such successor,
purchasing or transferee Person, as the case may be, shall, as a condition
precedent to such reclassification, change, consolidation, merger, binding share
exchange, sale or conveyance, execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall have
the right to convert such Security into the kind and amount of shares of stock
and other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, binding share exchange, sale or
conveyance by a holder of the number of Ordinary Shares deliverable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, binding share exchange, sale or conveyance. Such
supplemental indenture shall provide for adjustments of the Conversion Ratio
which shall be as nearly equivalent as may be practicable to the adjustments of
the Conversion Ratio provided for in this Article 18. If, in the case of any
such consolidation, merger, binding share exchange, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of Ordinary Shares include shares of stock or other securities and
property of a Person other than the successor, purchasing or transferee Person,
as the case may be, in such consolidation, merger, binding share exchange, sale
or conveyance, then such supplemental indenture shall also be executed by such
other Person and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors of the
Guarantor shall reasonably consider necessary by reason of the foregoing. The
provisions of this Section 18.16 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, binding share exchange,
sales or conveyances.
-98-
In the event the Guarantor shall execute a supplemental indenture pursuant
to this Section 18.16, the Guarantor shall promptly file with the Trustee (x) an
Officer's Certificate briefly stating the reasons therefor, the kind or amount
of shares of stock or other securities or property (including cash) receivable
by Holders of the Securities upon the conversion of their Securities after any
such reclassification, change, consolidation, merger, binding share exchange,
sale or conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
If this Section 18.16 applies, neither Section 18.6 or 18.7 applies.
Section 18.17. Guarantor Determination Final.
Any determination that the Board of Directors of the Company or the Board
of Directors of the Guarantor must make pursuant to this Article 18 is
conclusive.
Section 18.18. Trustee's Adjustment Disclaimer.
The Trustee shall have no duty to determine when an adjustment under this
Article 18 should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of that fact or the correctness of any
such adjustment, and shall be protected in relying upon, an Officer's
Certificate including the Officer's Certificate with respect thereto which the
Guarantor is obligated to file with the Trustee pursuant to Section 18.14. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the Guarantor's failure to comply with any provisions of this
Article 18.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 18.16, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officer's
Certificate with respect thereto which the Guarantor is obligated to file with
the Trustee pursuant to Section 18.16.
Section 18.19. Simultaneous Adjustments.
If this Article 18 requires adjustments to the Conversion Ratio under more
than one of Sections 18.6(5), 18.7 or 18.8, and the record dates for the
distributions giving rise to such adjustments shall occur on the same date, then
such adjustments shall be made by applying, first, the provisions of Section
18.6, second, the provisions of Section 18.8 and, third, the provisions of
Section 18.7.
Section 18.20. Successive Adjustments.
After an adjustment to the Conversion Ratio under this Article 18, any
subsequent event requiring an adjustment under this Article 18 shall cause an
adjustment to the Conversion Ratio as so adjusted.
-99-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
Given under the common seal
of:
ELAN CAPITAL CORP., LTD
By:
-----------------------------------------
Name:
Title:
Given under the common seal
of:
ELAN CORPORATION, plc
By:
-------------------------------------
Name:
Title: Director
By:
-------------------------------------
Name:
Title: Director
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY NAMED
BELOW OR A NOMINEE OF THE DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED HEREIN AND IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THIS SECURITY AND THE INDENTURE. THE REGISTERED HOLDER HEREOF MAY BE TREATED BY
THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES. TRANSFERS OF BENEFICIAL INTERESTS OF PORTIONS OF THIS
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH SECTION 3.5 OF
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM, OR CLEARSTREAM
BANKING, SOCIETE ANONYME (EACH, A "DEPOSITORY"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CITIVIC NOMINEES LIMITED OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS
MADE TO CITIVIC NOMINEES LIMITED OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CITIVIC NOMINEES LIMITED, HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF
OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS 40 DAYS AFTER THE LATER OF THE ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) PURSUANT TO AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OR REGULATION S UNDER THE SECURITIES ACT OR (D) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE RIGHT OF EACH OF THE
A-1
COMPANY, THE SECURITIES REGISTRAR AND THE TRUSTEE, PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER PURSUANT TO CLAUSES (C) OR (D), TO REQUIRE DELIVERY OF A
CERTIFICATE, OPINION OF COUNSEL OR OTHER INFORMATION SATISFACTORY TO IT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. BY ITS ACCEPTANCE HEREOF, THE HOLDER HEREOF
REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF
A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.
THE RIGHTS ATTACHING TO THIS SECURITY, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE
INDENTURE.
ELAN CAPITAL CORP., LTD.
[o]% CONVERTIBLE GUARANTEED DEBT SECURITIES DUE [o], 2008
No. CUSIP No.: __________
ISIN No.: ____________
$____________________
Elan Capital Corp., Ltd., a Bermuda exempted company limited by shares
(hereinafter called the "Company," which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _____________________, or registered assigns, the principal
sum of _________________________ Dollars, on ___________, 2008.
Interest Payment Dates: [ ] and [ ]; commencing [ ].
Regular Record Dates: [ ] and [ ].
Reference is made to the further provisions of this Security set forth on
the reverse side, which further provisions shall, for all purposes, have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse side hereof by manual signature, this
Security shall not be entitled to any benefits under the Indenture referred to
on the reverse side hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Given under common seal of:
ELAN CAPITAL CORP., LTD.
By:
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the [o]% Convertible Guaranteed Debt Securities due [o] referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------------
Authorized Signatory
Dated:
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[FORM OF REVERSE SIDE OF SECURITY]
[o]% Convertible Guaranteed Debt Securities due [ ]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest and Additional Amounts. The Company promises to pay interest on
the principal amount of this Security at [o]% per annum from the date of
original issuance until maturity and shall pay Additional Amounts, if any,
payable pursuant to the Indenture referred to below. The Company will pay
interest and Additional Amounts, if any, semi-annually on [ ] and [ ] of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each, an "Interest Payment Date"). Interest on this Security will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the date this Security is initially issued pursuant to the
Indenture; provided that if there is no existing default in the payment of
interest, and if this Security is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be [ ]. The Company shall
pay interest (including interest accruing subsequent to the filing of a petition
initiating any proceeding pursuant to any bankruptcy law) on overdue principal
and premium, if any, from time to time on demand at the rate then in effect; it
shall pay interest (including interest accruing subsequent to the filing of a
petition initiating any proceeding pursuant to any bankruptcy law) on overdue
installments of interest and Additional Amounts, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Subject to Article 17 of the Indenture and to the other limitations set
forth in Sections 10.10 and 16.2 of the Indenture, the Company and the Guarantor
will pay to Holders of the Securities such Additional Amounts as may be
necessary in order that every net payment of principal, premium, if any, Change
of Control Purchase Price, Redemption Price or interest or, in the case of the
Guarantor, delivery of shares (including cash in lieu of fractional shares) in
respect of any Securities, after deduction or withholding for or on account of
any present or future tax, assessment or other governmental charge imposed upon
or as a result of such payment by (i) Bermuda or Ireland or any political
subdivision or governmental authority thereof or therein having power to tax,
(ii) any jurisdiction from or through which payment is made, or any political
subdivision or governmental authority thereof or therein having the power to
tax, or (iii) any other jurisdiction in which the Company or the Guarantor are
organized or otherwise considered to be a resident for tax purposes, or any
political subdivision or governmental authority thereof or therein having the
power to tax, will not be less than the amount provided for in such Securities
to be then due and payable.
Whenever in this Security or the Indenture there is mentioned, in any
context, the payment of the principal of or any premium, interest or any other
amounts on, or in respect of, any Security or the net proceeds received on the
sale or conversion of any Security, such mention shall be deemed to include
mention of the payment of such Additional Amounts provided by the terms
established hereby or pursuant hereto to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of Additional Amounts (if
applicable) in any provision hereof shall not be construed as excluding the
payment of Additional Amounts in those provisions hereof where such express
mention is not made.
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2. Method of Payment. The Company will pay interest on this Security
(except Defaulted Interest) and Additional Amounts, if any, to the Persons who
are registered Holders of Securities at the close of business on the [ ] or [ ]
next preceding the Interest Payment Date (each a "Regular Record Date"), even if
this Security is cancelled after such Record Date and on or before such Interest
Payment Date, except as provided in Section 3.7 of the Indenture with respect to
Defaulted Interest. Any such interest which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease to
be payable to the registered Holder hereof on the relevant Regular Record Date
by virtue of having been such Holder, and may be paid by the Company or the
Guarantor, at its election, (i) to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Company, notice whereof shall be given to the Holder of this Security by the
Trustee not less than 10 days prior to such Special Record Date or (ii) in any
other lawful manner elected by the Company or the Guarantor and deemed
practicable by the Trustee.
Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company shall pay principal, premium, interest and Additional
Amounts in Dollars. At the option of the Company or the Guarantor, interest on
the Notes may be paid by mailing a check to the address of the Person entitled
thereto as such address shall appear in the Security Register or by transfer to
an account maintained by the payee with a bank located in the United States.
In the case of any Security which Security is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security with respect to which the Stated Maturity is prior to such
Interest Payment Date), interest with respect to which the Stated Maturity is on
such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence, in the case of any Security which is
converted, interest with respect to which the Stated Maturity is after the date
of conversion of such Security shall not be payable.
3. Paying Agent, Security Registrar and Conversion Agent. Initially, The
Bank of New York, the Trustee under the Indenture, will act as Paying Agent,
Security Registrar and Conversion Agent. The Company may change any Paying
Agent, Security Registrar or Conversion Agent without notice to any Holder.
4. Indenture. The Company issued this Security under an Indenture dated as
of [ ], 2003 ("Indenture") among the Company, the Guarantor and the Trustee. The
terms of this Security include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act. This Security is
subject to all such terms, and Holders are referred to the Indenture and the
Trust Indenture Act for a statement of such terms. The Securities are general
obligations of the Company.
5. Optional Redemption. Subject to Section 10.13 of the Indenture, on
giving not less than 30 or more than 60 days' notice to the Trustee and the
Holders, the Company may, at any time after [o years plus 10 days after
issuance], redeem Securities at its option, in whole or in part, at a Redemption
Price equal to 100% of the Securities' aggregate principal amount plus accrued
and unpaid interest on, and any Additional Amounts with respect to, such
Securities to, but excluding, the Redemption Date; provided that, within a
period of 30 consecutive Trading Days ending five Trading Days prior to the date
on which the relevant notice of redemption is given as provided above, the Sale
Price of the ADSs for 20 Trading Days shall have been at least [o]% of the
Conversion Price deemed to be in effect on each of such Trading Days.
A-5
6. Redemption for Tax Reasons. Subject to Section 10.13 of the Indenture,
the Company, at its option, may redeem the Securities for cash prior to their
maturity in the event of certain changes in the tax laws of any Relevant Taxing
Jurisdiction after the date of issuance of the Securities as specified in the
Indenture. If, as a result of any change in, or amendment to, the laws
(including any regulations or rulings promulgated thereunder) of a Relevant
Taxing Jurisdiction, or any political subdivision or taxing authority thereof or
therein, or any amendment to or change in the application or official
interpretation of such laws, regulations or rulings (including a holding,
judgment or order by a court of competent jurisdiction or any action taken by a
taxing authority which action is generally applied or is taken with respect to
the Company or the Guarantor), which change, amendment, application or
interpretation is proposed and becomes effective on or after the date of
issuance of the Securities, the Company or the Guarantor has or would become
obligated to pay to the Holder of any Securities Additional Amounts, and such
obligations cannot be avoided by the Company or the Guarantor, as applicable,
taking reasonable measures (consistent with practices and interpretations
generally followed or in effect at the time such measures could be taken)
available to it, then the Company may, at its option, redeem the Securities as a
whole but not in part, upon not less than 30 days' nor more than 60 days' notice
given as provided in Section 11.4 of the Indenture, at a Redemption Price equal
to 100% of the Securities' aggregate principal amount plus accrued and unpaid
interest and any Additional Amounts on such Securities, to but excluding the
Redemption Date, but without reduction for withholding taxes except that no such
notice of redemption may be given earlier than 60 days prior to the earliest
date on which the Company or the Guarantor would be obliged to pay any such
Additional Amounts were a payment in respect of the Securities then due.
Notwithstanding the foregoing, any Holder of Securities may elect not to
permit redemption of its Securities in the manner described above; provided
that, following any such election, such Holder will not be entitled to receive
Additional Amounts in the manner described in the Indenture.
7. Repurchase of Securities at the Option of the Holder upon a Change of
Control. If, on or after March 16, 2005, there shall have occurred a Change of
Control, Securities shall be purchased, at the option of the Holder thereof, by
the Guarantor at a purchase price equal to 100% of the aggregate principal
amount thereof plus accrued interest thereon to, but excluding, the Change of
Control Purchase Date (the "Change of Control Purchase Price"), on the date that
is 90 Business Days after the occurrence of the Change of Control (the "Change
of Control Purchase Date"), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 13.1(c) of the Indenture.
8. Conversion. A Holder of a Security may convert the principal amount of
such Security (or any portion thereof equal to $1,000 or any integral multiple
of $1,000 in excess thereof) into Shares at any time on or after the opening of
business on the 120th day after the Issue Date and on or prior to the close of
business on the seventh Business Day prior to the Stated Maturity Date of the
Securities, at the Conversion Ratio then in effect; provided, however, that if
such Security is (i) called for redemption pursuant to Article 11, such
conversion right shall terminate at the close of business on the seventh
Business Day preceding the Redemption Date for such Security or such earlier
date as the Holder presents such Security for redemption (unless the Company
shall default in making the redemption payment when due, in which case the
conversion right shall terminate at the close of business on the date such Event
of Default is cured and such Security is redeemed) or (ii) submitted or
presented for purchase pursuant to Article 13, such conversion right shall
terminate at the close of business on the Change of Control Purchase Date for
such Security or such earlier date as the Holder presents such Security for
redemption or for purchase (unless the Guarantor shall default in making the
Change of Control Purchase Price payment when due, in which case the conversion
right shall terminate at the close of business on the date such Event of Default
is cured and such Security is purchased). The initial Conversion Ratio (the
"Conversion Ratio") is [ ], subject to adjustment as provided in this Article 18
of the Indenture.
A-6
Each Holder's right to convert Securities into Shares is subject to the
Guarantor's right to elect to instead pay such Holder the amount of cash set
forth in the next succeeding sentence, in lieu of delivering such Shares (a
"Cash Alternative"). The amount of cash to be paid, if the Guarantor elects a
Cash Alternative, for each $1,000 in principal amount of a Security upon
conversion, shall be equal to the Current Market Price of an ADS on the ninth
Trading Day following the Conversion Date, multiplied by the Conversion Ratio in
effect on such Trading Day (a "Cash Alternative Payment"). Such payment shall be
effected not later than ten Trading Days following the relevant Conversion Date.
Except as otherwise provided in Section 18.1 of the Indenture, the Guarantor may
not revoke such election once such notification has been provided.
The Guarantor shall not pay a Cash Alternative upon the conversion of any
Security pursuant to the terms of Section 18.1 of the Indenture (other than cash
in lieu of fractional shares pursuant to Section 18.3), if there has occurred
(prior to, on or after, as the case may be, the Conversion Date or the date on
which the Guarantor delivers its notice electing to pay a Cash Alternative) and
is continuing an Event of Default (other than a default in the payment of such
Cash Alternative on such Securities); provided, however, that this sentence
shall not apply in the event that an Event of Default occurs after such Cash
Alternative is paid.
The Guarantor shall not deliver a notice electing to, and shall not,
directly or indirectly, pay a Cash Alternative at any time any Existing EPIL
Indebtedness is outstanding.
A Security in respect of which a Holder has delivered a Change of Control
Purchase Notice pursuant to Section 13.1(c) of the Indenture exercising the
option of such Holder to require the Company to purchase such Security may be
converted only if such Change of Control Purchase Notice is withdrawn in
accordance with the terms of the Indenture.
A Holder of Securities is not entitled to any rights of a holder of Shares
until such Holder has converted its Securities into Shares, and only to the
extent such Securities are deemed to have been converted into Shares pursuant to
this Article 18 of the Indenture.
If the Guarantor is party to a consolidation, merger or binding share
exchange or a sale or conveyance as an entirety or substantially as an entirety
of the property and assets of the Guarantor which is otherwise permitted under
the terms of the Indenture, pursuant to which the Ordinary Shares are converted
into the right to receive other securities, cash or other assets, then, subject
to the second proviso of this paragraph, the right to convert a Security into
Shares will be transformed into a right to convert such Security for the kind
and amount of securities, cash or other assets which the Holder would have
received if the Holder had converted such Security immediately prior to such
consolidation, merger, exchange or transfer; provided that, if such
consolidation, merger, exchange or transfer constitutes a Change of Control
pursuant to which, during the 90 days following such Change of Control, the
Conversion Ratio is determined as provided in Section 18.10 of the Indenture,
the Holder, in connection with any conversion occurring during such 90 day
period, shall be deemed to have converted such Holder's Securities at the
Conversion Ratio determined in accordance with Section 18.10 of the Indenture;
provided, further, that, if any part of the Total Consideration paid to the
holders of Ordinary Shares in connection with any Change of Control consists of
Listed Equity Securities, the right to convert a Security into Shares will, from
and after the 91st day after such Change of Control, be transformed into a right
to convert such Security into a number of such Listed Equity Securities equal to
the sum of (i) the number of Listed Equity Securities which the Holder would
have received if the Holder had converted such Security immediately prior to
such Change of Control and (ii) a number of Listed Equity Securities having a
Market Value on the date of such Change of Control equal to the fair market
value of the Total Consideration (excluding Listed Equity Securities referred to
in clause (i) of this sentence) which the Holder would have received if the
Holder had converted such Security immediately prior to such Change of Control.
A-7
To convert a Security, a Holder must (i) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(ii) surrender the Security to a Conversion Agent and (iii) pay any tax required
pursuant to Section 18.4 of the Indenture. In the case of Global Securities,
conversion notices may be delivered and such Securities may be surrendered for
conversion in accordance with the Applicable Procedures as in effect from time
to time.
Securities so surrendered for conversion (in whole or in part) during the
period from the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date (excluding Securities or
portions thereof called for redemption or presented for purchase on a Redemption
Date or Change of Control Purchase Date, as the case may be, during the period
beginning at the close of business on a Regular Record Date and ending at the
opening of business on the first Business Day after the next succeeding Interest
Payment Date, or if such interest payment date is not a Business Day, the second
such Business Day) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security.
9. Denominations, Transfer, Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. Every Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar for such Security) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar for such Security duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may, except in limited
circumstances described in the Indenture, require payment of a sum sufficient to
cover any tax or other governmental charge and any other expenses (including
fees and expenses of the Trustee) that may be imposed in connection with any
registration of transfer or exchange of Securities.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of Securities under Section 11.4 of
the Indenture and ending at the close of business on the day of such mailing,
(ii) to register the transfer of or exchange any Security selected for
redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to issue,
register the transfer of or exchange any Security which, in accordance with its
terms, has been surrendered for repayment at the option of the Holder, except
the portion, if any, of such Security not to be so repaid.
10. Persons Deemed Owners. Prior to due presentment of a Security for
registration of transfer, the Company, the Guarantor, the Trustee and any agent
of the Company or the Guarantor or the Trustee may treat the Person in whose
name such Security is registered in the Security Register as the owner of such
Security for all other purposes whatsoever, whether or not any payment with
respect to such Security shall be overdue, and none of the Company, the
Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a Clearing Agency shall have any rights under this Indenture with
respect to such Global Security, and such Clearing Agency may be treated by the
Company, the Guarantor, the Trustee, and any agent of the Company, the Guarantor
or the Trustee as the owner of such Global Security for all purposes whatsoever.
None of the
A-8
Company, the Guarantor, the Trustee, any Paying Agent or the Security Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
11. Amendment, Supplement and Waiver. The Company, the Guarantor and the
Trustee may enter into an indenture or indentures supplemental to the Indenture
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of the Holders of Securities under the Indenture or of the Securities
with the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities (the "Required Holders"), and compliance with any
term, provision or condition of the Indenture or any past default and its
consequences may be waived with the consent of the Required Holders.
Without the consent of any Holders of Securities, the Company, the
Guarantor and the Trustee, at any time and from time to time, may enter into one
or more indentures supplemental hereto, (i) to evidence the succession of
another Person to the Company or the Guarantor in accordance with the terms of
the Indenture, (ii) to add to the covenants of the Company or the Guarantor for
the benefit of the Holders of Securities or to surrender any right or power
conferred upon the Company or the Guarantor, (iii) to evidence and provide for
the acceptance of appointment hereunder by a successor Trustee, (iv) to cure any
ambiguity or to correct or supplement any provision of the Indenture which may
be defective or inconsistent with any other provision, or to make any other
provisions with respect to matters or questions arising under the Indenture
which shall not adversely affect the interests of the Holders of Securities then
Outstanding in any material respect, (v) to add to, delete from or revise the
conditions, limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, (vi) to add any
additional Events of Default with respect to the Securities, (vii) to supplement
any of the provisions of the Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge the Securities pursuant to
Article 4 of the Indenture (provided that any such action shall not adversely
affect the interests of any Holder of an Outstanding Security in any material
respect), (viii) to secure the Securities pursuant to Section 10.4 of the
Indenture or otherwise, (ix) to make provisions with respect to conversion
rights of Holders of Securities or (x) to amend or supplement any provision
contained in the Indenture or in any supplemental indenture (provided that no
such amendment or supplement shall materially adversely affect the interests of
the Holders of any Securities then Outstanding).
Notwithstanding anything in the Indenture or this Security to the contrary,
(i) no amendment, supplement or other modification or waiver of Sections 1.19,
1.20 (other than as such Section relates to Article 17 of the Indenture), 1.21,
4.5, clause (a) of Section 9.8, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16 or
10.17 of the Indenture or the fourth paragraph of Section 18.1 of the Indenture
(or of any of the definitions used in any of the foregoing) shall be effective
without the prior written consent of the Required Existing EPIL Holders; and
(ii) no amendment, supplement or other modification or waiver of Article 17,
Section 1.20 (but only as such Section relates to Article 17 of the Indenture),
or clause (b) of Section 9.8 of the Indenture (or of any of the definitions used
in any of the foregoing) shall be effective without the prior written consent of
the Required EPIL Holders. In addition, neither the Company nor the Guarantor
shall, directly or indirectly, at any time any Existing EPIL Indebtedness is
outstanding, without the prior written consent of the Required Existing EPIL
Holders, amend, supplement or otherwise modify the Indenture or this Security;
provided, however, that the Company and the Guarantor may amend, modify or
supplement the Indenture and this Security (i) to evidence the succession of a
successor Person to the Guarantor pursuant to Section 8.3 of the Indenture, (ii)
to comply with Section 18.16 of the Indenture, (iii) to evidence or provide for
the acceptance of a successor Trustee pursuant to Section 6.9 of the Indenture
or (iv) to make any change that does not adversely affect the interests of the
holders of the EPIL II Notes or the EPIL III Notes; provided, further, that,
subject to clause (iv) of this sentence and Section 9.8 of the Indenture,
nothing in this sentence shall prohibit or otherwise restrict any waiver of any
term, pro-
A-9
vision or condition of the Indenture or this Security that waives or reduces the
rights of the Holders (it being understood that any such waiver shall not be
deemed to be adverse to the interests of the holders of the EPIL II Notes or the
EPIL III Notes solely because such waiver prevents the existence of a
cross-default under the EPIL II Agreements or the EPIL III Agreements).
12. Defaults and Remedies. The Indenture provides that each of the
following constitutes an Event of Default (whatever the reason for such Event of
Default, whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body and
whether or not it shall be occasioned or prohibited by the provisions of Article
17 of the Indenture and, in circumstances where the Guarantor and/or the Company
are required to obtain the consent of the Required EPIL Holders or the Required
Existing EPIL Holders, as the case may be, as a condition to taking any action,
whether or not occasioned or prohibited by the failure of the Guarantor and/or
the Company, as the case may be, to obtain such consent): (i) default in the
payment of any interest on any Security, or any Additional Amounts payable with
respect thereto, when such interest becomes or such Additional Amounts become
due and payable, and continuance of such default for a period of 30 days
(whether or not such payment is prohibited by Article 17 of the Indenture), (ii)
default in the payment of the principal of or any premium on any Security, or
any Additional Amounts payable with respect thereto, when such principal or
premium becomes or such Additional Amounts become due and payable either at
their Maturity upon any redemption, by declaration of acceleration (whether or
not such payment is prohibited by Article 17 of the Indenture), (iii) default in
the performance, or breach, of any covenant or agreement of the Company or the
Guarantor in the Indenture or the Securities and continuance of such default or
breach for a period of 60 days after there has been given to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities, a
Notice of Default, (iv) any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there may
be secured or evidenced, any Indebtedness of the Guarantor, whether such
Indebtedness now exists or shall hereafter be created or incurred, shall happen
and shall consist of default in the payment of such Indebtedness at the maturity
thereof (after giving effect to any applicable grace period) and such
Indebtedness in aggregate principal amount exceeds $30,000,000, or results in
the Indebtedness in aggregate principal amount in excess of $30,000,000 becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, and, in each case, such default shall not be cured or
such acceleration shall not be rescinded or annulled within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities, a written notice specifying such event of default and
requiring the Company or the Guarantor to cause such acceleration to be
rescinded or annulled or to cause such Indebtedness to be discharged and stating
that such notice is a "Notice of Default," (v) the Guarantor shall fail within
60 days to pay, bond or otherwise discharge any uninsured judgment or court
order for the payment of money in excess of $30,000,000, which is not stayed on
appeal or is not otherwise being appropriately contested in good faith, (vi)
certain events of bankruptcy involving the Guarantor and (vii) the Guarantee
ceases to be in full force and effect or is declared null and void or the
Guarantor denies that it has any further liability under the Guarantee or gives
notice to such effect, other than by reason of the termination of the Indenture
with respect to the Securities.
13. Subordination. Anything in the Indenture or this Security
notwithstanding, the Guarantee is subordinated, to the extent and in the manner
provided by Article 17 of the Indenture, to the prior payment in full, or such
payment duly provided for to the satisfaction of the holder of Guarantor Senior
Debt, of all Guarantor Senior Debt (whether outstanding on the Issue Date or
thereafter incurred).
Anything in the Indenture or this Security notwithstanding, if any EPIL
Default occurs and is continuing, then, to the extent and in the manner provided
in Article 17 of the Indenture, no payment or
A-10-
distribution of any kind or character shall be made (directly or indirectly) by
or on behalf of the Company, the Guarantor or any other Person on its or their
behalf with respect to any Obligations or Guarantee Obligations under the
Indenture, the Securities or the Guarantee, or to acquire any of the Securities
for cash or property or otherwise, and the Guarantor will not permit the Company
to make any such payment, distribution or acquisition until such EPIL Default
(and all other EPIL Defaults) shall have been cured or waived in accordance with
the EPIL Agreements or ceased to exist or all EPIL Indebtedness with respect to
which any EPIL Default has occurred and is continuing, shall have been paid in
full in cash.
Each Holder, by its acceptance hereof, agrees to bound by the provisions of
Article 17 of the Indenture and authorizes and expressly directs, to the extent
and in the manner provided in Article 17 of the Indenture, the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
provisions of Article 17 of the Indenture.
14. Certain Covenants. The Indenture imposes certain limitations on the
ability of the Guarantor, the Company and/or the other Subsidiaries of the
Guarantor to, directly or indirectly, incur Liens, enter into sale and leaseback
transactions, amend, supplement or otherwise modify the Indenture or the
Securities or certain other outstanding Indebtedness and obligations, discharge
or defease or purchase, redeem prepay or otherwise acquire or retire for value
certain Indebtedness (including the Securities), pay dividends, redeem, purchase
or otherwise acquire or retire for value Capital Stock, engage in Asset Sales,
make Investments in the Company and, with respect to the Company, conduct any
business, incur any Indebtedness, suffer to exist any Lien or consolidate or
amalgamate with or merge into any Person or convey, transfer or lease the
Company's properties and assets as an entirety or substantially as an entirety.
Such limitations are subject to a number of important qualifications and
exceptions. The Company and the Guarantor must annually report to the Trustee on
compliance with such limitations.
15. Discharge Prior to Maturity. Subject to Section 4.5 of the Indenture,
if the Company or the Guarantor deposits with the Trustee or a Paying Agent cash
or Government Obligations sufficient to pay the entire indebtedness of the
Securities not theretofore delivered to the Trustee for cancellation, including
principal of, any premiums and interest on, and any Additional Amounts with
respect to, such Securities to the date of the deposits and satisfies certain
conditions specified in the Indenture, the Company and the Guarantor will be
discharged from the Indenture, except for certain sections thereof.
16. Enforcement of Certain Covenants. Sections 1.19, 1.20, 1.21, 4.5, 9.8,
10.11, 10.12, 10.13, 10.14, 10.15, 10.16 and 10.17, the fourth paragraph of
Section 18.1 and Article 17 of the Indenture shall constitute a continuing offer
to all Persons who become holders of, or who continue to hold, Guarantor Senior
Debt, and such provisions and each of the definitions used therein are made for
the benefit of the holders of Guarantor Senior Debt and such holders are made
obligees under the Indenture and any one or more of them may enforce such
provisions.
17. Trustee Dealings with Company or the Guarantor. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or the Guarantor, and may otherwise deal with
the Company or the Guarantor, as if it were not the Trustee.
18. No Recourse Against Others. No incorporator, shareholder, member,
officer, director or employee, as such, past, present or future, of the Company
or the Guarantor or any successor entity shall have any personal liability in
respect of obligations of the Company or the Guarantor under the Indenture, the
Securities or the Guarantee solely by reason of his, her or its status as such
shareholder, member, officer, director or employee, except that this provision
shall in no way limit the obligation of any Guarantor pursuant to any Guarantee
of the Securities. Each Holder, by accepting a Security, waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Securities.
A-11
19. Authentication. This Security shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
20. 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).
21. ISIN/CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
ISIN/CUSIP numbers to be printed on the Securities and the Trustee may use
ISIN/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 Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon, and any such
redemption shall not be affected by any defect in or omission of such numbers.
22. Governing Law; Submission to Jurisdiction.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company and the Guarantor each have agreed that any judicial
proceedings instituted in relation to any matter arising under the Indenture or
the Securities may be brought in any United States federal or New York State
court sitting in the Borough of Manhattan, The City of New York, New York to the
extent that such court has subject matter jurisdiction over the controversy,
and, by execution and delivery of the Indenture, the Company and the Guarantor
each have irrevocably accepted, generally and unconditionally, the jurisdiction
of the aforesaid courts, acknowledged their competence and irrevocably agreed to
be bound by any judgment rendered in such proceeding. The Company and the
Guarantor have each also irrevocably and unconditionally waived for the benefit
of the Trustee and the Holders of the Securities any immunity from jurisdiction
and any immunity from legal process (whether through service or notice,
attachment prior to judgment, attachment in the aid of execution, execution or
otherwise) in respect of this Indenture.
23. Waiver of Trial By Jury. Each of the Company and the Guarantor has
irrevocably waived, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
the Indenture, the Securities or the transactions contemplated by the Indenture.
A-12-
The Company and the Guarantor will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Elan Corporation, plc
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: Corporate Secretary
Telephone No.: ▇▇▇-▇-▇▇▇-▇▇▇▇
A-13
Assignment Form
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security 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 Security 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 Security)
Signature Guarantee: ___________________________________________________________
(participant in recognized signature guarantee medallion
program)
A-14
Conversion Notice
To convert this Security into Ordinary Shares or American Depositary Shares
of the Guarantor, check the box: [ ] Ordinary Shares [ ] American Depositary
Shares
To convert only part of this Security, state the principal amount to be
converted (must be $1,000 or a multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name, fill
in the form below:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your Signature:
Date:__________________ _______________________________________________
(Sign exactly as your name appears on the other
face of this Security)
Signature Guarantee: ___________________________________________________________
(participant in recognized signature guarantee medallion
program)
A-15
EXHIBIT B
[FORM OF GUARANTEE]
For value received, the undersigned hereby unconditionally guarantees,
subject to Article 17 of the Indenture, to the Trustee and to each Holder of a
Security to which this Guarantee is attached authenticated and delivered by the
Trustee the due and punctual payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to such Security, when and
as the same shall become due and payable, whether at maturity, upon
acceleration, redemption, repayment or otherwise, in accordance with the terms
of this Security and of the Indenture, including, without limitation, Articles
16 and 17 thereof. Subject to Article 17 of the Indenture, in case of the
failure of the Company punctually to pay any such principal, premium, interest
or Additional Amounts, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, and as if such
payment were made by the Company. This Guarantee will become effective in
accordance with Articles 16 and 17 of the Indenture and its term shall be
evidenced therein. The validity and enforceability of this Guarantee shall not
be affected by the fact that it is not affixed to any particular Security.
The obligations of the Guarantor to the Holders and to the Trustee pursuant
to this Guarantee and the Indenture are expressly subordinate and subject in
right of payment to the prior payment in full of all Guarantor Senior Debt, to
the extent and in the manner provided in Article 17 of the Indenture.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture, dated as of [ ], 2003, among Elan Capital
Corp., Ltd., the undersigned and The Bank of New York, as Trustee.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed.
Given under common seal of:
ELAN CORPORATION, PLC
By:
Name:
Title:
By:
Name:
Title:
B-1
EXHIBIT B
FUNDING AGREEMENT
This FUNDING AGREEMENT (this "Agreement"), dated as of [ ], 2003, is made
by Elan Corporation, plc, a public limited company organized under the laws of
Ireland ("Elan"), in favor of Elan Capital Corp., Ltd., a Bermuda exempted
company limited by shares and a direct, wholly owned subsidiary of Elan ("ECC").
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the EEC Indenture (as defined herein).
W I T N E S S E T H:
WHEREAS, ECC is issuing $[250,000,000] in aggregate principal amount of its
[ ]% Convertible Guaranteed Debt Securities due [ ], 2008 (the "ECC Notes")
pursuant to an Indenture, dated as of [ ], 2003, among ECC, as issuer, Elan, as
guarantor, and The Bank of New York, as trustee (as in effect from time to time,
the "ECC Indenture");
WHEREAS, ECC is lending the gross proceeds from the issuance of the ECC
Notes to Elan pursuant to a non-interest bearing promissory note (the "ECC/Elan
Note") issued by Elan and dated the date hereof; and
WHEREAS, as consideration, in part, for the issuance of the ECC/Elan Note,
Elan has agreed to enter into this Agreement pursuant to which it will provide
to ECC the funds necessary to pay the costs and expenses of the issuance of the
ECC Notes and, from time to time, interest on the ECC Notes and ECC's
administrative expenses, in each case as provided herein.
NOW, THEREFORE, it is agreed:
1. Purchase of ECC Common Shares. Elan shall, in the case of clause (a) of
this Section 1, on the date hereof, and, in the case of clauses (b) and (c) of
this Section 1, not earlier than the fifth Business Day and not later than the
last Business Day preceding the date of the applicable funding requirement of
ECC described in such clauses (b) and (c), purchase common shares, par value
$1.00 per share, of ECC (the "ECC Common Shares") having an aggregate purchase
price equal to (but not exceeding) the amount required by ECC (a) to pay the
costs and expenses incurred by ECC in connection with the issuance of the ECC
Notes, (b) to make payments of Interest due from ECC on the ECC Notes from time
to time pursuant to the terms of the ECC Indenture and (c) to pay legal and
administrative fees and expenses incurred from time to time by ECC.
2. Funding Obligations Subordinated Guarantor Senior Debt. Anything in this
Agreement to the contrary notwithstanding, Elan, for itself and its successors,
and ECC, by its execution of this Agreement, agree that the payment of all
obligations of every nature of Elan from time to time owing to ECC under this
Agreement, whether pursuant to Section 1 hereof or otherwise, but excluding
payments pursuant to Section 1(c) hereof (collectively, the "Funding
Obligations"), are subordinated, to the extent and in the manner provided in
this Section 2 and Sections 3, 4, 5, 6 and 7 hereof (collectively, the
"Subordination Provisions"), to the prior payment in full in cash, or such
payment duly provided for to the satisfaction of the holders, of all Guarantor
Senior Debt, whether outstanding on the date hereof or thereafter incurred.
-2-
3. No Payment When Guarantor Senior Debt in Default. (a) If any EPIL
Default occurs and is continuing, then no payment or distribution of any kind or
character shall be made (directly or indirectly) by or on behalf of Elan or any
other Person on its or their behalf with respect to any Funding Obligations
until such EPIL Default (and all other EPIL Defaults) shall have been cured or
waived in accordance with the terms of the EPIL Agreements or ceased to exist or
all EPIL Indebtedness with respect to which any EPIL Default has occurred and is
continuing, shall have been paid in full in cash.
(b) In the event that, notwithstanding the foregoing, any payment shall be
received by ECC when such payment is prohibited by paragraph (a) of this Section
3, such payment shall be held in trust (and segregated from the funds and other
assets of ECC) for the benefit of, and shall be promptly paid over or delivered
to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis
of the respective amounts of Guarantor Senior Debt held by such holders) as
their respective interests may appear.
4. Funding Obligations Subordinated to Prior Payment of All Guarantor
Senior Debt on Dissolution, Liquidation or Reorganization of Elan. (a) Upon any
payment or distribution of assets of Elan of any kind or character, whether in
cash, securities, property or other assets, to creditors upon any total or
partial liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors or marshaling of assets of Elan or in a bankruptcy,
examinorship, reorganization, insolvency, receivership or other similar
proceeding relating to Elan or its assets, whether voluntary or involuntary, all
Guarantor Senior Debt due or to become due shall first be paid in full in cash,
or such payment duly provided for to the satisfaction of the holders of
Guarantor Senior Debt, before ECC shall be entitled to receive any payment or
distribution of any kind or character on account of any Funding Obligations.
Upon any such liquidation, dissolution, winding-up, reorganization, assignment
for the benefit of creditors, marshalling of assets, bankruptcy, examinorship,
insolvency, receivership or other similar proceeding, any payment or
distribution of assets of Elan of any kind or character, whether in cash,
securities, property or other assets, to which ECC would be entitled, except for
the provisions hereof, shall be paid by Elan or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by ECC if received by it, directly to the holders of Guarantor
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt held by such holders), as their respective interests may
appear, for application to the payment of Guarantor Senior Debt remaining unpaid
until all such Guarantor Senior Debt has been paid in full in cash after giving
effect to any concurrent payment or distribution to the holders of Guarantor
Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or on
behalf of Elan, as proceeds of security or enforcement of any right of setoff or
otherwise) is invalidated or declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, assignee for the benefit of creditors, agent or other Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, assignee for the benefit of creditors, agent
or other Person, the Guarantor Senior Debt or part thereof originally intended
to be satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred and the Subordination Provisions shall be reinstated
and continue in full force and effect.
-3-
It is further agreed that any diminution (whether pursuant to court decree
or otherwise, including without limitation for any of the reasons described in
the preceding sentence) of Elan's obligation to make any distribution or payment
pursuant to any Guarantor Senior Debt, except to the extent such diminution
occurs by reason of the repayment (which has not been disgorged or returned) of
such Guarantor Senior Debt in cash, shall have no force or effect for purposes
of the Subordination Provisions, with any turnover of payments as otherwise
calculated pursuant to the Subordination Provisions to be made as if no such
diminution had occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of Elan of any kind or character, whether in cash,
securities, property or other assets, shall be received by ECC when such payment
or distribution is prohibited by this Section 4, such payment or distribution
shall be held in trust (and segregated from the funds and other assets of ECC)
for the benefit of, and shall be promptly paid over or delivered to, the holders
of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders), as their
respective interests may appear, for application to the payment of Guarantor
Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid
in full in cash, after giving effect to any concurrent payment or distribution
to the holders of such Guarantor Senior Debt.
(d) The consolidation or amalgamation of Elan with, or the merger of Elan
into, another corporation or the liquidation or dissolution of Elan following
the conveyance or transfer of its assets as an entirety or substantially as an
entirety to, another Corporation, as long as permitted under the terms of the
ECC Indenture and the EPIL Agreements, shall not be deemed a liquidation,
dissolution, winding-up or reorganization for the purposes of this Section 4, if
such other Corporation shall, as a part of such consolidation, amalgamation,
merger, conveyance or transfer, assume the Funding Obligations of Elan
hereunder.
5. Certain Payments. Except as specified herein, Elan may make payments at
any time for the purpose of making payments on Funding Obligations (provided
that, notwithstanding the foregoing, to the extent that ECC has received any
payments made in contravention of Sections 3 and/or 4, such payments shall
otherwise be subject to the provisions of Sections 3 and/or 4).
6. Subordination Right Not Impaired by Acts or Omissions of Elan or Holders
of Guarantor Senior Debt. (a) No right of any present or future holders of any
Guarantor Senior Debt to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of Elan or by any act or failure to act by any such holder, or by any
noncompliance by Elan with the terms of this Agreement, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt may, at any time and from time to time,
without the consent of or notice to ECC, without incurring responsibility to ECC
and without impairing or releasing the subordination provided in the
Subordination Provisions or the obligations hereunder of ECC to the holders of
Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any EPIL
Agreement, (ii) sell, exchange, release or otherwise deal with any property
pledged, mort-
-4-
gaged or otherwise securing Guarantor Senior Debt, (iii) release any Person
liable in any manner for the payment or collection of Guarantor Senior Debt,
(iv) exercise or refrain from exercising any rights against Elan and any other
Person and (v) any waiver of the payment, performance or observance of any of
the obligations, conditions, covenants or agreements contained in any of the
EPIL Agreements, or any other waiver, consent, extension, indulgence,
compromise, settlement, release or other action or inaction under or in respect
of any of the EPIL Agreements.
7. Subordination Provisions Not to Prevent Defaults. The failure to make a
payment on account of any Funding Obligation by reason of any provision of the
Subordination Provisions will not be construed as preventing the occurrence of a
default under this Agreement.
8. Limitation on Amendments, Modifications or Supplements of Agreement.
Neither ECC nor Elan will, at any time any EPIL Indebtedness is outstanding,
without the prior written consent of the Required EPIL Holders, amend,
supplement or otherwise modify this Agreement.
9. Enforcement of Certain Provisions. The Subordination Provisions,
Sections 8, 12 and 13 and this Section 9 constitute a continuing offer to all
Persons who become holders of, or who continue to hold, Guarantor Senior Debt,
and such provisions and each of the definitions used therein are made for the
benefit of the holders of Guarantor Senior Debt and such holders are made
obligees hereunder and any one or more of them may enforce such provisions.
10. ECC to Reserve Stock. (a) ECC shall, from time to time as may be
necessary, reserve, out of its authorized but unissued ECC Common Shares, or
otherwise procure or make available, a sufficient number of ECC Common Shares to
permit Elan to meet its Funding Obligations.
(b) All ECC Common Shares issued to Elan pursuant to this Agreement shall
be newly issued shares or treasury shares, shall be duly authorized, validly
issued and fully paid and nonassessable and shall be free from preemptive rights
and free and clear of any lien or adverse claim created or incurred by ECC.
11. Termination. This Agreement shall terminate and be of no further force
and effect upon the date on which the ECC Notes have been repaid in full.
12. Jurisdiction. Each of ECC and Elan agrees that any judicial proceedings
instituted in relation to any matter arising under this Agreement may be brought
in any United States Federal or New York State courts sitting in the Borough of
Manhattan, The City of New York, New York, to the extent that such courts have
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Agreement, each of ECC and Elan hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgment rendered in
such proceeding. Each of ECC and Elan also irrevocably and unconditionally
waives any immunity from jurisdiction and any immunity from legal process
(whether through service or notice, attachment prior to judgment, attachment in
the aid of execution, execution or otherwise) in respect of this Agreement.
13. Waiver of Jury Trial. Elan and ECC each hereby irrevocably waive trial
by jury in any legal action or proceeding relating to this Agreement and for any
counterclaim therein.
-5-
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
THIS SPACE INTENTIONALLY LEFT BLANK
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
Given under the common seal of:
ELAN CORPORATION, plc
By
Name:
Title:
Given under the common seal of:
ELAN CAPITAL CORP., LTD.
By
Name:
Title:
EXHIBIT C
FIRST ELAN/EIS NOTE
PROMISSORY NOTE
$[250,000,000.00] New York, New York
[ ], 2003
FOR VALUE RECEIVED, Elan International Services, Ltd., an exempted limited
liability company organized under the laws of Bermuda ("EIS" or "Payor"), hereby
promises to pay on the Maturity Date (as defined below) to Elan Corporation,
plc, a public limited company organized under the laws of Ireland ("Elan" or
"Payee"), in lawful money of the United States of America in immediately
available funds, at the office of Payee located at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, an amount equal to $[250,000,000.00] (the "Loan"). The Loan
shall not bear interest.
"Maturity Date" means [ ], 20[08], provided that Elan may demand payment in
full of the Loan at any time within 30 days by providing written notice to EIS.
1. Obligations Senior to Other Debt. Ranking. The indebtedness evidenced by
this note (the "Note") shall be an unsecured and senior obligation of Payor and
will rank equally with all other unsecured and unsubordinated obligations of
Payor.
2. Waiver of Presentment; No Offset. Payor hereby waives presentment,
demand, protest or notice of any kind in connection with this Note. All payments
under this Note shall be made without offset, counterclaim or deduction of any
kind.
3. JURISDICTION. PAYOR AGREES THAT ANY JUDICIAL PROCEEDINGS INSTITUTED IN
RELATION TO ANY MATTER ARISING UNDER THIS NOTE MAY BE BROUGHT IN ANY UNITED
STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, THE
CITY OF NEW YORK, NEW YORK TO THE EXTENT THAT SUCH COURT HAS SUBJECT MATTER
JURISDICTION OVER THE CONTROVERSY, AND, BY EXECUTION AND DELIVERY OF THIS NOTE,
PAYOR HEREBY IRREVOCABLY ACCEPTS, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS, ACKNOWLEDGES THEIR COMPETENCE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED IN SUCH PROCEEDING.
PAYOR ALSO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY IMMUNITY FROM JURISDICTION
AND ANY IMMUNITY FROM LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN THE AID OF EXECUTION, EXECUTION OR
OTHERWISE) IN RESPECT OF THIS NOTE.
4. Waiver of Jury Trial. PAYOR AND, BY ITS ACCEPTANCE HEREOF, PAYEE, EACH
HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS NOTE AND FOR ANY COUNTERCLAIM THEREIN.
[Elan/EIS Note A]
S-1
5. Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
ELAN INTERNATIONAL SERVICES, LTD.
By
----------------------------------------
Name:
Title:
ELAN CORPORATION, plc
By
----------------------------------------
Name:
Title:
EXHIBIT D
ECC/ELAN NOTE
PROMISSORY NOTE
$[250,000,000.00] New York, New York
[ ], 2003
FOR VALUE RECEIVED, Elan Corporation, plc, a public limited company
organized under the laws of Ireland ("Elan" or "Payor"), hereby promises to pay
on the Maturity Date (as defined below) to Elan Capital Corp., Ltd., a Bermuda
exempted company limited by shares and a direct, wholly owned subsidiary of Elan
("ECC" or "Payee"), in lawful money of the United States of America in
immediately available funds, at the office of Payee located at ▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇, ▇▇ 04 Bermuda, an amount equal to (i) $[250,000,000.00] minus (ii) the
principal amount of any ECC Notes (as defined below) converted pursuant to, and
in accordance with the terms of, Article 18 of the ECC Indenture (as defined
below) (the amount obtained, at the time of any such conversion, by subtracting
the immediately preceding clause (ii) from the immediately preceding clause (i),
the "Loan Amount"). The Loan Amount shall not bear interest.
This note (this "Note") is the Guarantor Intercompany Note referred to in
the Indenture, dated as of [ ], 2003, among ECC, as issuer, Elan, as guarantor,
and The Bank of New York, as trustee (as in effect from time to time, the "ECC
Indenture") pursuant to which ECC is issuing $[250,000,000] in aggregate
principal amount of [ ]% Convertible Guaranteed Debt Securities due [ ], 2008
(the "ECC Notes"). "Maturity Date" means the fifth Business Day preceding the
stated final maturity date of the principal of the ECC Notes (without giving
effect to any amendment thereof). Capitalized terms used but not defined herein
shall have the meaning ascribed to such terms in the ECC Indenture.
1. Obligations Subordinated to Guarantor Senior Debt. Anything in this Note
to the contrary notwithstanding, Elan, for itself and its successors, and ECC,
by its acceptance of this Note, agree that the payment of all obligations of
every nature of Elan from time to time owing to ECC under this Note (the
"Obligations"), are subordinated, to the extent and in the manner provided in
this Section 1 and Sections 2, 3 and 4 of this Note (collectively, the
"Subordination Provisions"), to the prior payment in full in cash, or such
payment duly provided for to the satisfaction of the holders of all Guarantor
Senior Debt, whether outstanding on the date hereof or thereafter incurred and
agree to comply with the terms hereof.
2. No Payment When EPIL Indebtedness Outstanding. (a) No payment or
distribution of any kind or character shall be made (directly or indirectly) by
or on behalf of Elan or any other Person on its or their behalf with respect to
any Obligation or to acquire, directly or indirectly, all or any part of this
Note for cash or other assets or otherwise at any time any EPIL Indebtedness is
outstanding.
(b) In the event that, notwithstanding the foregoing, any payment or
distribution or consideration in connection with the acquisition of all or any
part of this Note shall be received by ECC when such payment or distribution or
consideration in connection with the acquisition of all or any part of this Note
is prohibited by paragraph (a) of this Section 2, such payment shall be held in
trust by ECC (and segregated from the funds and other assets of ECC) for the
benefit of, and shall be promptly paid over or delivered to, the holders of
Guarantor
-2-
Senior Debt (pro rata to such holders on the basis of the respective amounts of
Guarantor Senior Debt held by such holders) as their respective interests may
appear.
3. Elan Obligations Subordinated to Prior Payment of All Guarantor Senior
Debt on Dissolution, Liquidation or Reorganization of Elan. (a) Upon any payment
or distribution of assets of Elan of any kind or character, whether in cash,
securities, property or other assets, to creditors upon any total or partial
liquidation, dissolution, winding-up, reorganization, assignment for the benefit
of creditors or marshaling of assets of Elan or in a bankruptcy, examinorship,
reorganization, insolvency, receivership or other similar proceeding relating to
Elan or its assets, whether voluntary or involuntary, all Guarantor Senior Debt
due or to become due shall first be paid in full in cash, or such payment duly
provided for to the satisfaction of the holders of Guarantor Senior Debt, before
ECC shall be entitled to receive any payment or distribution of any kind or
character on account of any Obligations or for the acquisition of all or any
part of this Note for cash or other assets or otherwise. Upon any such
liquidation, dissolution, winding-up, reorganization, assignment for the benefit
of creditors, marshalling of assets, bankruptcy, examinorship, insolvency,
receivership or other similar proceeding, any payment or distribution of assets
of Elan of any kind or character, whether in cash, securities, property or other
assets, to which ECC would be entitled, except for the provisions hereof, shall
be paid by Elan or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by ECC if received
by it, directly to the holders of Guarantor Senior Debt (pro rata to such
holders on the basis of the respective amounts of Guarantor Senior Debt held by
such holders), as their respective interests may appear, for application to the
payment of Guarantor Senior Debt remaining unpaid until all such Guarantor
Senior Debt has been paid in full in cash after giving effect to any concurrent
payment or distribution to the holders of Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or on
behalf of Elan, as proceeds of security or enforcement of any right of setoff or
otherwise) is invalidated or declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, assignee for the benefit of creditors, agent or other Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, assignee for the benefit of creditors, agent
or other Person, the Guarantor Senior Debt or part thereof originally intended
to be satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred and the Subordination Provisions shall be reinstated
and continue in full force and effect.
It is further agreed that any diminution (whether pursuant to court decree
or otherwise, including without limitation for any of the reasons described in
the preceding sentence) of Elan's obligation to make any distribution or payment
pursuant to any Guarantor Senior Debt, except to the extent such diminution
occurs by reason of the repayment (which has not been disgorged or returned) of
such Guarantor Senior Debt in cash, shall have no force or effect for purposes
of the Subordination Provisions, with any turnover of payments as otherwise
calculated pursuant to the Subordination Provisions to be made as if no such
diminution had occurred.
-3-
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of Elan of any kind or character, whether in cash,
securities, property or other assets, shall be received by ECC when such payment
or distribution is prohibited by this Section 3, such payment or distribution
shall be held in trust (and segregated from the funds and other assets of ECC)
for the benefit of, and shall be promptly paid over or delivered to, the holders
of Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amounts of Guarantor Senior Debt held by such holders), as their
respective interests may appear, for application to the payment of Guarantor
Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid
in full in cash, after giving effect to any concurrent payment or distribution
to the holders of such Guarantor Senior Debt.
(d) The consolidation or amalgamation of Elan with, or the merger of Elan
into, another Corporation or the liquidation or dissolution of Elan following
the conveyance or transfer of its assets as an entirety or substantially as an
entirety, to another Corporation, as long as permitted under the terms of the
ECC Indenture and the EPIL Agreements, shall not be deemed a liquidation,
dissolution, winding-up or reorganization for the purposes of this Section 3, if
such other Corporation shall, as a part of such consolidation, amalgamation,
merger, conveyance or transfer, assume the Obligations of Elan hereunder.
4. Subordination Right Not Impaired by Acts or Omissions of Elan or Holders
of Guarantor Senior Debt. (a) No right of any present or future holders of any
Guarantor Senior Debt to enforce subordination as provided herein shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of Elan or by any act or failure to act by any such holder, or by any
noncompliance by Elan with the terms of this Note, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
(b) Without in any way limiting the generality of the foregoing paragraph,
the holders of Guarantor Senior Debt may, at any time and from time to time,
without the consent of or notice to ECC, without incurring responsibility to ECC
and without impairing or releasing the subordination provided in the
Subordination Provisions or the obligations hereunder of ECC to the holders of
Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any EPIL
Agreement, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior Debt, (iii) release
any Person liable in any manner for the payment or collection of Guarantor
Senior Debt, (iv) exercise or refrain from exercising any rights against Elan
and any other Person and (v) any waiver of the payment, performance or
observance of any of the obligations, conditions, covenants or agreements
contained in any of the EPIL Agreements, or any other waiver, consent,
extension, indulgence, compromise, settlement, release or other action or
inaction under or in respect of any of the EPIL Agreements.
5. Limitation on Amendments, Modifications or Supplements of Note. Neither
ECC nor Elan will, at any time any EPIL Indebtedness is outstanding, without the
prior writ-
-4-
ten consent of the Required EPIL Holders, amend, supplement or otherwise modify,
or waive any term of, this Note.
6. Limitation on Disposition of Note. ECC will not, directly or indirectly,
at any time any EPIL Indebtedness is outstanding, without the prior written
consent of the Required EPIL Holders, sell, convey, transfer, assign or
otherwise dispose of all or any portion of this Note.
7. Enforcement of Subordination Provisions. The Subordination Provisions,
Sections 5, 6, 9 and 10 and this Section 7 shall constitute a continuing offer
to all Persons who become holders of, or who continue to hold, Guarantor Senior
Debt, and such provisions and each of the definitions used therein are made for
the benefit of the holders of Guarantor Senior Debt and such holders are made
obligees hereunder and any one or more of them may enforce such provisions and
Payor and Payee by its acceptance of this Note agree to comply with the terms
hereof for the benefit of the holders from time to time of the Guaranteed Senior
Debt.
8. Waiver of Presentment; No Offset. Payor hereby waives presentment,
demand, protest or notice of any kind in connection with this Note. All payments
under this Note shall be made without offset, counterclaim or deduction of any
kind.
9. JURISDICTION. EACH OF PAYOR AND PAYEE AGREES THAT ANY JUDICIAL
PROCEEDINGS INSTITUTED IN RELATION TO ANY MATTER ARISING UNDER THIS NOTE MAY BE
BROUGHT IN ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, NEW YORK TO THE EXTENT THAT SUCH
COURT HAS SUBJECT MATTER JURISDICTION OVER THE CONTROVERSY, AND, BY EXECUTION
AND DELIVERY OF THIS NOTE, EACH OF PAYOR AND PAYEE HEREBY IRREVOCABLY ACCEPTS,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS,
ACKNOWLEDGES THEIR COMPETENCE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED IN SUCH PROCEEDING. EACH OF PAYOR AND PAYEE ALSO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY IMMUNITY FROM JURISDICTION AND ANY IMMUNITY FROM
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN THE AID OF EXECUTION, EXECUTION OR OTHERWISE) IN RESPECT OF THIS
NOTE.
10. WAIVER OF JURY TRIAL. PAYOR AND, BY ITS ACCEPTANCE HEREOF, PAYEE, EACH
HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS NOTE AND FOR ANY COUNTERCLAIM THEREIN.
-5-
11. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
ELAN CORPORATION, plc
By
------------------------------------------
Name:
Title:
Accepted and agreed to:
ELAN CAPITAL CORP., LTD.
By
--------------------------------
Name:
Title:
EXHIBIT E
SECOND ELAN/EIS NOTE
PROMISSORY NOTE
$[ ] New York, New York
[ ], 2003
FOR VALUE RECEIVED, Elan International Services, Ltd., an exempted limited
liability company organized under the laws of Bermuda ("EIS" or "Payor"), hereby
promises to pay on the Maturity Date (as defined below) to Elan Corporation,
plc, a public limited company organized under the laws of Ireland ("Elan" or
"Payee"), in lawful money of the United States of America in immediately
available funds, at the office of Payee located at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, an amount equal to $[ ] (the "Loan"). The Loan shall not bear
interest.
"Maturity Date" means [ ], 2008, provided that Elan may demand payment in
full of the Loan at any time within 30 days by providing written notice to EIS.
1. Obligations Senior to Other Debt. Ranking. The indebtedness evidenced by
this note (the "Note") shall be an unsecured and senior obligation of Payor and
will rank equally with all other unsecured and unsubordinated obligations of
Payor.
2. Waiver of Presentment; No Offset. Payor hereby waives presentment,
demand, protest or notice of any kind in connection with this Note. All payments
under this Note shall be made without offset, counterclaim or deduction of any
kind.
3. JURISDICTION. PAYOR AGREES THAT ANY JUDICIAL PROCEEDINGS INSTITUTED IN
RELATION TO ANY MATTER ARISING UNDER THIS NOTE MAY BE BROUGHT IN ANY UNITED
STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, THE
CITY OF NEW YORK, NEW YORK TO THE EXTENT THAT SUCH COURT HAS SUBJECT MATTER
JURISDICTION OVER THE CONTROVERSY, AND, BY EXECUTION AND DELIVERY OF THIS NOTE,
PAYOR HEREBY IRREVOCABLY ACCEPTS, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS, ACKNOWLEDGES THEIR COMPETENCE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED IN SUCH PROCEEDING.
PAYOR ALSO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY IMMUNITY FROM JURISDICTION
AND ANY IMMUNITY FROM LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN THE AID OF EXECUTION, EXECUTION OR
OTHERWISE) IN RESPECT OF THIS NOTE.
4. Waiver of Jury Trial. PAYOR AND, BY ITS ACCEPTANCE HEREOF, PAYEE, EACH
HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS NOTE AND FOR ANY COUNTERCLAIM THEREIN.
[ECC/Elan Note B]
S-1
5. Governing Law. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
ELAN INTERNATIONAL SERVICES, LTD.
By
----------------------------------------
Name:
Title:
ELAN CORPORATION, plc
By
----------------------------------------
Name:
Title:
[ECC/Elan Note B]