Virginia
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001-12658
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54-1692118
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(State or other jurisdiction
of incorporation)
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(Commission
file number)
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(IRS employer
identification no.)
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Title of each class
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Trading Symbol
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Name of each exchange on which registered
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COMMON STOCK, $.01 Par Value
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ALB
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New York Stock Exchange
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Exhibit Number
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Exhibit Description
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104
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Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.
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ALBEMARLE CORPORATION
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Date: November 25, 2019
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By:
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/s/ Karen G. Narwold
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Karen G. Narwold
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Executive Vice President, Chief Administrative Officer and General Counsel
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Executed by Albemarle Wodgina Pty Ltd in accordance with Section 127 of the Corporations Act 2001
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/s/Karen G. Narwold
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/s/ Mathew Shane Zauner
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Signature of director
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Signature of director/company secretary
(Please delete as applicable)
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Karen G. Narwold
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Mathew Shane Zauner
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Name of director (print)
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Name of director/company secretary (print)
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Executed by Albemarle Wodgina Pty Ltd in accordance with Section 127 of the Corporations Act 2001
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Signature of director
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Signature of director/company secretary
(Please delete as applicable)
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Name of director (print)
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Name of director/company secretary (print)
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint ___________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date of Redemption or
Repurchase |
Amount of
decrease in Principal Amount of this Note |
Amount of
increase in Principal Amount of this Note |
Principal amount
of this Note following such decrease or increase |
Notation Made
by or on Behalf of Trustee |
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint ___________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date of Redemption or
Repurchase |
Amount of
decrease in Principal Amount of this Note |
Amount of
increase in Principal Amount of this Note |
Principal amount
of this Note following such decrease or increase |
Notation Made
by or on Behalf of Trustee |
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Executed by Albemarle Wodgina Pty Ltd in accordance with Section 127 of the Corporations Act 2001
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Signature of director
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Signature of director/company secretary
(Please delete as applicable)
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Name of director (print)
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Name of director/company secretary (print)
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(Insert assignee’s soc. sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint ___________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Date of Redemption or
Repurchase |
Amount of
decrease in Principal Amount of this Note |
Amount of
increase in Principal Amount of this Note |
Principal amount
of this Note following such decrease or increase |
Notation Made
by or on Behalf of Trustee |
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(1)
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any Taxes that would not have been imposed but for the holder or beneficial owner of the 2025 Note having a present or former connection with the Relevant Tax Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Tax Jurisdiction) other than by the mere acquisition, ownership or holding of such 2025 Note or enforcement of rights thereunder or the receipt of payments in respect thereof;
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(2)
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to any Holder that is not the sole beneficial owner of the 2025 Note, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;
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(3)
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to any Tax that is imposed or withheld solely by reason of the failure of the holder or beneficial owner to comply with any certification, identification, or information
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(4)
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to a Tax that is imposed otherwise than by withholding by the Issuer or a Paying Agent from the payment;
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(5)
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to a Tax that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
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(6)
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to an estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax, or a similar tax, assessment or governmental charge;
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(7)
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to any Tax required to be withheld by any Paying Agent from any payment of principal of or interest on any 2025 Note, if such payment can be made without such withholding by any other Paying Agent;
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(8)
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to any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such 2025 Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the holder or beneficial owner thereof would have been entitled to additional amounts had the 2025 Notes been presented for payment on any date during such 30 day period;
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(9)
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to any Tax imposed by Germany for the reason that the 2025 Notes are kept or administered in a domestic securities deposit account by a German credit or financial services institution (Kredit- oder Finanzdienstleistungsinstitut) (or by a German branch of a foreign credit or financial services institution), or by a German securities trading business (Wertpapierhandelsunternehmen) or a German securities trading bank (Wertpapierhandelsbank);
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(10)
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to any taxes imposed under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended, the Code) (or any successor provisions that are substantively comparable) and any current or future regulations or official interpretations thereof (FATCA) or any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
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(11)
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in the case of any combination of any items (1) through (10).
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(1)
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Liens existing on the date of the Fiscal Agency Agreement;
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(2)
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Liens existing on any Principal Property owned or leased by a corporation at the time it becomes a Restricted Subsidiary;
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(3)
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Liens existing on any Principal Property at the time of its acquisition by the Guarantor or a Restricted Subsidiary, which Lien was not incurred in anticipation of such acquisition and was outstanding prior to such acquisition;
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(4)
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Liens to secure any Indebtedness incurred prior to, at the time of, or within 12 months after the acquisition of any Principal Property for the purpose of financing all or any part of the purchase price thereof and any Lien to the extent that it secures Indebtedness which is in excess of such purchase price and for the payment of which recourse may be had only against such Principal Property;
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(5)
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Liens to secure any Indebtedness incurred prior to, at the time of, or within 12 months after the completion of the construction and commencement of commercial operation, alteration, repair or improvement of any Principal Property for the purpose of financing all or any part of the cost thereof and any Lien to the extent that it secures Indebtedness which is in excess of that cost and for the payment of which recourse may be had only against the Principal Property;
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(6)
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Liens in favor of the Guarantor or any of the Restricted Subsidiaries;
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(7)
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Liens in favor of the United States or any state or any other country, or any agency, instrumentality or political subdivision of any of the foregoing, to secure partial, progress, advance or other payments or performance pursuant to the provisions of any contract or statute, or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Liens;
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(8)
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Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other similar Liens arising in the ordinary course of business, or federal, state or municipal government Liens arising out of contracts for the sale of products or services by the Guarantor or any Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing;
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(9)
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Pledges or deposits under workmen’s compensation laws or similar legislation and Liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Guarantor or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of the Guarantor or any Restricted Subsidiary, or deposits in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or deposits of cash or obligations of the United States to secure surety, appeal or customs bonds to which the Guarantor or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to, interpleader proceedings;
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(10)
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Liens in connection with legal proceedings being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against the Guarantor or any Restricted Subsidiary, which judgments or awards are being appealed, and Liens incurred for the purpose of obtaining a stay order or discharge during a legal proceeding to which the Guarantor or any Restricted Subsidiary is a party;
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(11)
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Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings;
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(12)
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Liens consisting of easements, rights of way and restrictions on the use of real property, and defects in title, which do not (a) interfere materially with the use of the property covered thereby in the ordinary course of the Guarantor’s or any Restricted Subsidiary’s business or (b) materially detract from the property’s value in the Guarantor’s opinion; and
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(13)
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Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing subclauses (2) through (12) above, so long as the principal amount of the Indebtedness secured thereby does not exceed the principal amount of Indebtedness so secured at the time of the extension, renewal or replacement (except that, where an additional principal amount of Indebtedness is incurred to provide funds for the completion of a specific project, the additional principal amount, and any related financing costs, may be secured by the Lien as well) and the Lien is limited to the same property subject to the Lien so extended, renewed or replaced, plus improvements on the property.
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the aggregate amount of the Indebtedness, plus
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all of the Guarantor’s other Indebtedness and the Indebtedness of the Restricted Subsidiaries secured by a Lien that would otherwise be subject to the foregoing restrictions in this Paragraph 7(a) (not including Indebtedness permitted to be secured under the foregoing restrictions in this Paragraph 7(a)), plus
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the aggregate Attributable Debt (as defined below) determined as of the Incurrence Time of Sale and Leaseback Transactions (as defined below), other than Sale and Leaseback Transactions permitted pursuant to Paragraph 7(b) entered into after the date of the Fiscal Agency Agreement and in existence at the Incurrence Time, less
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the aggregate amount of proceeds of such Sale and Leaseback Transactions that have been applied as provided pursuant to Paragraph 7(b), does not exceed 15% of the Guarantor’s Consolidated Net Tangible Assets (as defined below).
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(a)
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applicable reserves and other properly deductible items;
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(b)
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all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles; and
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(c)
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all current liabilities, as reflected in the latest consolidated balance sheet contained in the Guarantor’s most recent annual report on Form 10-K or quarterly report on Form 10-Q filed pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act) prior to the time as of which “Consolidated Net Tangible Assets” will be determined.
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(a)
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the principal and premium (if any) in respect of indebtedness of such Person for borrowed money;
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(b)
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the principal and premium (if any) in respect of all obligations of such Person in the form of or evidenced by notes, debentures, bonds or other similar instruments, including obligations incurred in connection with its acquisition of property, assets or businesses;
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(c)
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capitalized lease obligations of such Person;
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(d)
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all obligations of such Person under letters of credit, bankers’ acceptances or similar facilities issued for its account;
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(e)
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all obligations of such Person issued or assumed in the form of a deferred purchase price of property or services, including master lease transactions pursuant to which such Person or its subsidiaries have agreed to be treated as owner of the subject property for federal income tax purposes (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business);
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(f)
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all payment obligations of such Person under swaps and other hedging arrangements;
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(g)
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all obligations of such Person pursuant to its guarantee or assumption of certain of another entity’s obligations and all dividend obligations guaranteed or assumed by such Person;
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(h)
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all obligations to satisfy the expenses and fees of the Fiscal Agent under the Fiscal Agency Agreement;
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(i)
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all obligations pursuant to all amendments, modifications, renewals, extensions, refinancings, replacements and refundings by such Person of the obligations referred to in subclauses (a) through (h) above; and
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(j)
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guarantees of any of the foregoing,
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(1)
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the Guarantor or the Restricted Subsidiary would, at the time of entering into the arrangement, be entitled, without equally and ratably securing the Guarantee of the 2025 Notes then outstanding, to incur, issue, assume or guarantee Indebtedness secured by a lien on the property, under subclauses (2) through (13) of Paragraph 7(a); or
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(2)
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the Guarantor, within 180 days after the sale or transfer, applies to the retirement of its Funded Debt an amount equal to the greater of:
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(a)
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the net proceeds of the sale of the Principal Property sold and leased back in connection with the arrangement; or
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(b)
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the fair market value of the Principal Property so sold and leased back at the time of entering into such arrangement.
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(1)
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such transaction involves the transfer of property to a governmental body, authority or corporation, such as a development authority, and is entered into primarily for the purpose of obtaining economic incentives and does not involve a third-party lender or investor; or
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(2)
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at the time of and giving effect to the transaction, the amount equal to the sum of:
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the aggregate amount of the Attributable Debt in respect of all Sale and Leaseback Transactions existing at the time that could not have been entered into except in reliance on this paragraph of this Paragraph 7(b), plus
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the aggregate amount of outstanding Indebtedness secured by Liens in reliance on the second paragraph of Paragraph 7(a),
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accept or cause a third party to accept for payment all 2025 Notes or portions of 2025 Notes properly tendered pursuant to the Change of Control Offer;
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deposit or cause a third party to deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all 2025 Notes or portions of 2025 Notes properly tendered; and
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deliver or cause to be delivered to the Fiscal Agent the 2025 Notes properly accepted together with an Officer’s certificate stating the aggregate principal amount of 2025 Notes or portions of 2025 Notes being repurchased.
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(1)
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the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Guarantor’s assets and the assets of its subsidiaries taken as a whole to any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) other than to the Guarantor or one of its subsidiaries;
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(2)
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the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) (other than the Guarantor or one of its subsidiaries) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of the Guarantor’s Voting Stock representing a majority of the voting power of its outstanding Voting Stock;
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(3)
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the Guarantor consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Guarantor, in any such event pursuant to a transaction in which any of the Guarantor’s outstanding Voting Stock or Voting Stock of such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Guarantor’s Voting Stock outstanding immediately prior to such transaction constitutes, or is converted into or exchanged for, Voting Stock representing a majority of the voting power of the Voting Stock of the surviving Person immediately after giving effect to such transaction; or
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(4)
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the adoption by the Guarantor’s stockholders of a plan relating to its liquidation or dissolution.
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(i)
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default for 30 days in payment of any interest on the 2025 Notes when it becomes due and payable; or
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(ii)
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default in payment of principal of or any premium on the 2025 Notes upon redemption, repayment or otherwise when the same becomes due and payable; or
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(iii)
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default by the Issuer or the Guarantor in the performance of any other covenant contained in the terms of the 2025 Notes or the Fiscal Agency Agreement for the benefit of the 2025 Notes that has not been remedied by the end of a period of 60 days following the service by the holders of at least 25% in principal amount of all outstanding 2025 Notes on the Issuer of notice requiring the same to be remedied; or
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(iv)
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default in the payment of principal or an acceleration of other indebtedness for borrowed money of the Issuer, the Guarantor or any Significant Subsidiary where the aggregate principal amount with respect to which the default or acceleration has occurred exceeds $100 million and such acceleration has not been rescinded or annulled or such indebtedness repaid within a period of 30 days after written notice to the Issuer by the Fiscal Agent or to the Issuer and the Fiscal Agent by the holders of at least 25% in principal amount of all outstanding 2025 Notes, provided that if any such default is cured, waived, rescinded or annulled, then the Event of Default by reason thereof would be deemed not to have occurred.
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(i)
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the Issuer, the Guarantor or a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (a) commences a voluntary case or proceeding; (b) consents to the entry of a judgment, decree or order for relief against it in an involuntary case or proceeding; (c) consents to the appointment of a Custodian of it or for any substantial part of its property; (d) makes a general assignment for the benefit of its creditors; (e) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; (f) takes any corporate action to authorize or effect any of the foregoing; or (g) takes any comparable action under any foreign laws relating to insolvency; or
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(ii)
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief in an involuntary case against the Issuer, the Guarantor or a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law; (b) appoints a Custodian for all or substantially all of the property of the Issuer or a Significant Subsidiary; or (c) orders the winding up or liquidation of the Issuer, the Guarantor or a Significant Subsidiary; and in each case, the order, decree or relief remains unstayed and in effect for 60 days.
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(a)
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the Issuer has paid to the holders a sum sufficient to pay in euro, subject to Paragraph 4(e):
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(ii)
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all unpaid principal of (and premium, if any, on) any outstanding 2025 Notes which has become due otherwise than by such a declaration of acceleration, and interest on such unpaid principal (or premium) at the rate borne by the 2025 Notes during the period of such default, and
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(iii)
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to the extent that payment of such interest is enforceable under applicable law, interest upon overdue interest to the date of such payment or deposit at the rate borne by the 2025 Notes during the period of such default; and
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(b)
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all Events of Default with respect to the 2025 Notes, other than the non-payment of the principal of (or premium, if any, on) or interest on the 2025 Notes which have become due solely by such an acceleration, have been cured or waived as provided in Paragraph 10.
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(1)
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any Taxes that would not have been imposed but for the holder or beneficial owner of the 2028 Note having a present or former connection with the Relevant Tax Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Tax Jurisdiction) other than by the mere acquisition, ownership or holding of such 2028 Note or enforcement of rights thereunder or the receipt of payments in respect thereof;
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(2)
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to any Holder that is not the sole beneficial owner of the 2028 Note, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner, or member received directly its beneficial or distributive share of the payment;
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(3)
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to any Tax that is imposed or withheld solely by reason of the failure of the holder or beneficial owner to comply with any certification, identification, or information
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(4)
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to a Tax that is imposed otherwise than by withholding by the Issuer or a Paying Agent from the payment;
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(5)
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to a Tax that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
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(6)
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to an estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax, or a similar tax, assessment or governmental charge;
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(7)
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to any Tax required to be withheld by any Paying Agent from any payment of principal of or interest on any 2028 Note, if such payment can be made without such withholding by any other Paying Agent;
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(8)
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to any Tax that is imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such 2028 Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the holder or beneficial owner thereof would have been entitled to additional amounts had the 2028 Notes been presented for payment on any date during such 30 day period;
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(9)
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to any Tax imposed by Germany for the reason that the 2028 Notes are kept or administered in a domestic securities deposit account by a German credit or financial services institution (Kredit- oder Finanzdienstleistungsinstitut) (or by a German branch of a foreign credit or financial services institution), or by a German securities trading business (Wertpapierhandelsunternehmen) or a German securities trading bank (Wertpapierhandelsbank);
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(10)
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to any taxes imposed under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (as amended, the Code) (or any successor provisions that are substantively comparable) and any current or future regulations or official interpretations thereof (FATCA) or any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
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(11)
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in the case of any combination of any items (1) through (10).
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(1)
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Liens existing on the date of the Fiscal Agency Agreement;
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(1)
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Liens existing on any Principal Property owned or leased by a corporation at the time it becomes a Restricted Subsidiary;
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(2)
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Liens existing on any Principal Property at the time of its acquisition by the Guarantor or a Restricted Subsidiary, which Lien was not incurred in anticipation of such acquisition and was outstanding prior to such acquisition;
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(3)
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Liens to secure any Indebtedness incurred prior to, at the time of, or within 12 months after the acquisition of any Principal Property for the purpose of financing all or any part of the purchase price thereof and any Lien to the extent that it secures Indebtedness which is in excess of such purchase price and for the payment of which recourse may be had only against such Principal Property;
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(4)
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Liens to secure any Indebtedness incurred prior to, at the time of, or within 12 months after the completion of the construction and commencement of commercial operation, alteration, repair or improvement of any Principal Property for the purpose of financing all or any part of the cost thereof and any Lien to the extent that it secures Indebtedness which is in excess of that cost and for the payment of which recourse may be had only against the Principal Property;
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(5)
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Liens in favor of the Guarantor or any of the Restricted Subsidiaries;
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(6)
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Liens in favor of the United States or any state or any other country, or any agency, instrumentality or political subdivision of any of the foregoing, to secure partial, progress, advance or other payments or performance pursuant to the provisions of any contract or statute, or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Liens;
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(7)
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Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other similar Liens arising in the ordinary course of business, or federal, state or municipal government Liens arising out of contracts for the sale of products or services by the Guarantor or any Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing;
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(8)
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Pledges or deposits under workmen’s compensation laws or similar legislation and Liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Guarantor or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of the Guarantor or any Restricted Subsidiary, or deposits in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or deposits of cash or obligations of the United States to secure surety, appeal or customs bonds to which the Guarantor or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to, interpleader proceedings;
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(9)
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Liens in connection with legal proceedings being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against the Guarantor or any Restricted Subsidiary, which judgments or awards are being appealed, and Liens incurred for the purpose of obtaining a stay order or discharge during a legal proceeding to which the Guarantor or any Restricted Subsidiary is a party;
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(10)
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Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings;
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(11)
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Liens consisting of easements, rights of way and restrictions on the use of real property, and defects in title, which do not (a) interfere materially with the use of the property covered thereby in the ordinary course of the Guarantor’s or any Restricted Subsidiary’s business or (b) materially detract from the property’s value in the Guarantor’s opinion; and
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(12)
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Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing subclauses (2) through (12) above, so long as the principal amount of the Indebtedness secured thereby does not exceed the principal amount of Indebtedness so secured at the time of the extension, renewal or replacement (except that, where an additional principal amount of Indebtedness is incurred to provide funds for the completion of a specific project, the additional principal amount, and any related financing costs, may be secured by the Lien as well) and the Lien is limited to the same property subject to the Lien so extended, renewed or replaced, plus improvements on the property.
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•
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the aggregate amount of the Indebtedness, plus
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•
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all of the Guarantor’s other Indebtedness and the Indebtedness of the Restricted Subsidiaries secured by a Lien that would otherwise be subject to the foregoing restrictions in this Paragraph 7(a) (not including Indebtedness permitted to be secured under the foregoing restrictions in this Paragraph 7(a)), plus
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•
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the aggregate Attributable Debt (as defined below) determined as of the Incurrence Time of Sale and Leaseback Transactions (as defined below), other than Sale and Leaseback Transactions permitted pursuant to Paragraph 7(b) entered into after the date of the Fiscal Agency Agreement and in existence at the Incurrence Time, less
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•
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the aggregate amount of proceeds of such Sale and Leaseback Transactions that have been applied as provided pursuant to Paragraph 7(b), does not exceed 15% of the Guarantor’s Consolidated Net Tangible Assets (as defined below).
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(a)
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applicable reserves and other properly deductible items;
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(b)
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all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles; and
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(c)
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all current liabilities, as reflected in the latest consolidated balance sheet contained in the Guarantor’s most recent annual report on Form 10-K or quarterly report on Form 10-Q filed pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act) prior to the time as of which “Consolidated Net Tangible Assets” will be determined.
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(a)
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the principal and premium (if any) in respect of indebtedness of such Person for borrowed money;
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(b)
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the principal and premium (if any) in respect of all obligations of such Person in the form of or evidenced by notes, debentures, bonds or other similar instruments, including obligations incurred in connection with its acquisition of property, assets or businesses;
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(c)
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capitalized lease obligations of such Person;
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(d)
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all obligations of such Person under letters of credit, bankers’ acceptances or similar facilities issued for its account;
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(e)
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all obligations of such Person issued or assumed in the form of a deferred purchase price of property or services, including master lease transactions pursuant to which such Person or its subsidiaries have agreed to be treated as owner of the subject property for federal income tax purposes (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business);
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(f)
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all payment obligations of such Person under swaps and other hedging arrangements;
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(g)
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all obligations of such Person pursuant to its guarantee or assumption of certain of another entity’s obligations and all dividend obligations guaranteed or assumed by such Person;
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(h)
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all obligations to satisfy the expenses and fees of the Fiscal Agent under the Fiscal Agency Agreement;
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(i)
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all obligations pursuant to all amendments, modifications, renewals, extensions, refinancings, replacements and refundings by such Person of the obligations referred to in subclauses (a) through (h) above; and
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(j)
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guarantees of any of the foregoing,
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(1)
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the Guarantor or the Restricted Subsidiary would, at the time of entering into the arrangement, be entitled, without equally and ratably securing the Guarantee of the 2028 Notes then outstanding, to incur, issue, assume or guarantee Indebtedness secured by a lien on the property, under subclauses (2) through (13) of Paragraph 7(a); or
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(1)
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the Guarantor, within 180 days after the sale or transfer, applies to the retirement of its Funded Debt an amount equal to the greater of:
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(a)
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the net proceeds of the sale of the Principal Property sold and leased back in connection with the arrangement; or
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(b)
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the fair market value of the Principal Property so sold and leased back at the time of entering into such arrangement.
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(1)
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such transaction involves the transfer of property to a governmental body, authority or corporation, such as a development authority, and is entered into primarily for the purpose of obtaining economic incentives and does not involve a third-party lender or investor; or
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(1)
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at the time of and giving effect to the transaction, the amount equal to the sum of:
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•
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the aggregate amount of the Attributable Debt in respect of all Sale and Leaseback Transactions existing at the time that could not have been entered into except in reliance on this paragraph of this Paragraph 7(b), plus
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•
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the aggregate amount of outstanding Indebtedness secured by Liens in reliance on the second paragraph of Paragraph 7(a),
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•
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accept or cause a third party to accept for payment all 2028 Notes or portions of 2028 Notes properly tendered pursuant to the Change of Control Offer;
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•
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deposit or cause a third party to deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all 2028 Notes or portions of 2028 Notes properly tendered; and
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•
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deliver or cause to be delivered to the Fiscal Agent the 2028 Notes properly accepted together with an Officer’s certificate stating the aggregate principal amount of 2028 Notes or portions of 2028 Notes being repurchased.
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(1)
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the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the Guarantor’s assets and the assets of its subsidiaries taken as a whole to any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) other than to the Guarantor or one of its subsidiaries;
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(1)
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the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) (other than the Guarantor or one of its subsidiaries) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of the Guarantor’s Voting Stock representing a majority of the voting power of its outstanding Voting Stock;
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(2)
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the Guarantor consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Guarantor, in any such event pursuant to a transaction in which any of the Guarantor’s outstanding Voting Stock or Voting Stock of such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Guarantor’s Voting Stock outstanding immediately prior to such transaction constitutes, or is converted into or exchanged for, Voting Stock representing a majority of the voting power of the Voting Stock of the surviving Person immediately after giving effect to such transaction; or
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(3)
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the adoption by the Guarantor’s stockholders of a plan relating to its liquidation or dissolution.
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(i)
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default for 30 days in payment of any interest on the 2028 Notes when it becomes due and payable; or
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(ii)
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default in payment of principal of or any premium on the 2028 Notes upon redemption, repayment or otherwise when the same becomes due and payable; or
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(iii)
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default by the Issuer or the Guarantor in the performance of any other covenant contained in the terms of the 2028 Notes or the Fiscal Agency Agreement for the benefit of the 2028 Notes that has not been remedied by the end of a period of 60 days following the service by the holders of at least 25% in principal amount of all outstanding 2028 Notes on the Issuer of notice requiring the same to be remedied; or
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(iv)
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default in the payment of principal or an acceleration of other indebtedness for borrowed money of the Issuer, the Guarantor or any Significant Subsidiary where the aggregate principal amount with respect to which the default or acceleration has occurred exceeds $100 million and such acceleration has not been rescinded or annulled or such indebtedness repaid within a period of 30 days after written notice to the Issuer by the Fiscal Agent or to the Issuer and the Fiscal Agent by the holders of at least 25% in principal amount of all outstanding 2028 Notes, provided that if any such default is cured, waived, rescinded or annulled, then the Event of Default by reason thereof would be deemed not to have occurred.
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(i)
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the Issuer, the Guarantor or a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: (a) commences a voluntary case or proceeding; (b) consents to the entry of a judgment, decree or order for relief against it in an involuntary case or proceeding; (c) consents to the appointment of a Custodian of it or for any substantial part of its property; (d) makes a general assignment for the benefit of its creditors; (e) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; (f) takes any corporate action to authorize or effect any of the foregoing; or (g) takes any comparable action under any foreign laws relating to insolvency; or
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(ii)
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief in an involuntary case against the Issuer, the Guarantor or a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law; (b) appoints a Custodian for all or substantially all of the property of the Issuer or a Significant Subsidiary; or (c) orders the winding up or liquidation of the Issuer, the Guarantor or a Significant Subsidiary; and in each case, the order, decree or relief remains unstayed and in effect for 60 days.
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(a)
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the Issuer has paid to the holders a sum sufficient to pay in euro, subject to Paragraph 4(e):
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(i)
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all overdue interest, if any, on all outstanding 2028 Notes,
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(ii)
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all unpaid principal of (and premium, if any, on) any outstanding 2028 Notes which has become due otherwise than by such a declaration of acceleration, and interest on such unpaid principal (or premium) at the rate borne by the 2028 Notes during the period of such default, and
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(iii)
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to the extent that payment of such interest is enforceable under applicable law, interest upon overdue interest to the date of such payment or deposit at the rate borne by the 2028 Notes during the period of such default; and
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(b)
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all Events of Default with respect to the 2028 Notes, other than the non-payment of the principal of (or premium, if any, on) or interest on the 2028 Notes which have become due solely by such an acceleration, have been cured or waived as provided in Paragraph 10.
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