TELEFLEX INCORPORATED
Exhibit 10.3
As of August 2, 2010
| Re: | Amendment No. 2 (this “Amendment”) to the Note Purchase Agreement dated as of October 1, 2007 |
TO THE NOTEHOLDERS
REFERENCED BELOW
REFERENCED BELOW
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement dated as of October 1, 2007 (as in effect on
the date hereof, the “Existing Note Agreement”, and as amended hereby, the “Note
Agreement”) among Teleflex Incorporated, a Delaware corporation (the “Company”), and each of
the institutions named on the signature pages thereof (the “Purchasers”), pursuant to which
the Purchasers purchased (i) U.S.$130,000,000 in original aggregate principal amount of the
Company’s 7.62% Series A Senior Notes due October 1, 2012, (ii) U.S.$40,000,000 in original
aggregate principal amount of the Company’s 7.94% Series B Senior Notes due October 1, 2014, and
(iii) U.S.$30,000,000 in original aggregate principal amount of the Company’s Floating Rate Series
C Senior Notes due October 1, 2012, (collectively, the “Existing Notes”). Each current
holder of an Existing Note is herein referred to as a “Noteholder”, and such holders
collectively are referred to as the “Noteholders”.
The Company has requested that the Noteholders agree to amend certain provisions of the
Existing Note Agreement as more fully described herein, and the Noteholders are willing to do so,
on the terms and conditions set forth herein, and accordingly, the Company and the Noteholders
hereby agree as follows:
Section 1. Definitions. All capitalized terms used herein but not defined herein shall
have the respective meanings ascribed thereto in the Existing Note Agreement.
Section 2. Consent to Convertible Subordination Provisions. Attached hereto as Annex A
is a subordination article of an indenture pursuant to which the following notes may be issued: (i)
the convertible senior subordinated notes the Company expects to issue on or prior to December 31,
2010 in an offering registered under the Securities Act (the “2010 Convertible Notes”), and
(ii) convertible senior subordinated notes of the Company that may be issued from time to time in
the future in offerings registered under the Securities Act or in offerings exempt from
registration under the Securities Act and in which the initial purchaser(s) acquires such
convertible senior subordinated notes with a view to resell such convertible senior subordinated
notes to investors pursuant to Rule 144A under the Securities Act. This article sets forth the
terms of subordination which would be substantially similar to terms included in the 2010
Convertible Notes and any such convertible senior subordinated notes that may be issued from time
to time in the future by the Company (the “Convertible Subordination Provisions”).
Effective as provided in Section 5 hereof, the Required Holders shall be deemed to have
consented to the Convertible Subordination Provisions to be included in the 2010 Convertible
Notes and the convertible senior subordinated notes of the Company described in clause (ii) above
(the “Consent”).
Section 3. Amendments. Effective as provided in Section 5 hereof, the Existing Note
Agreement shall be amended as follows:
(a) The Existing Note Agreement is hereby amended by adding the following new definition of
“Convertible Subordination Provisions”:
“Convertible Subordination Provisions” has the meaning set forth in Section 2 of Amendment No.
2, dated as of August 2, 2010, among the Company, the Subsidiary Guarantors and the holders of
Notes.
(b) The Existing Note Agreement is hereby amended by adding the following new definition of
“Qualifying Convertible Notes”:
“Qualifying Convertible Notes” means any series of unsecured notes convertible into or based
on common stock of the Company, par value $1 per share (the “Common Stock”) that (i) includes the
Convertible Subordination Provisions; (ii) is issued in an offering registered under the
Securities Act or in an offering exempt from registration under the Securities Act and in which the
initial purchaser(s) acquires such convertible senior subordinated notes with a view to resell such
convertible senior subordinated notes to investors pursuant to Rule 144A under the Securities Act;
and (iii) does not provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to six months after the scheduled maturity date of the Series B Notes, provided,
however, that (1) any conversion of such notes by a holder thereof into shares of Common Stock,
cash or a combination of cash and shares of Common Stock; (2) the rights of holders of such
Indebtedness to convert into shares of Common Stock, cash or a combination of cash and shares of
Common Stock; and (3) the rights of holders of such Indebtedness to require any repurchase by the
Company upon a fundamental change of such Indebtedness in cash, shall not constitute a scheduled
repayment, mandatory redemption or sinking fund obligation.”
(c) The definition of “Relevant Share” is hereby amended and restated in its entirety with the
following:
“Relevant Share” means (a) with respect to Section 8.4(b) as of the date of
receipt by the Company or any Subsidiary of any Section 8.4(a) Net Proceeds or Section
8.4(b) Net Proceeds, as the case may be, a ratio equal to (i) the aggregate outstanding
principal amount of the Notes at such time over (ii) the sum of (x) the aggregate
outstanding principal amount of the Term Loans plus (y) the aggregate outstanding principal
amount of the Existing Senior Notes plus (z) the aggregate outstanding principal amount of
the Notes and (b) with respect to Section 8.4(c) as of the date of payment by the Company
which causes the applicable Section 8.4(c) Threshold to be exceeded, a ratio equal to (i)
the aggregate outstanding principal amount of the Notes at such time over (ii) the sum of
(x) the aggregate outstanding principal amount of the Term Loans plus (y) the aggregate
outstanding principal amount of the Existing Senior Notes plus (z) the aggregate outstanding
principal amount of the Notes.”
(d) The Existing Note Agreement is hereby amended by adding the following new definition
of “Section 8.4(c) Payment”:
“Section 8.4(c) Payment” means the sum of all payments in cash by the Company to
holders of any and all Qualifying Convertible Notes in respect of such Indebtedness
made or paid in connection with the exercise by such holders of their right to
require repurchase upon a fundamental change (as defined under the indenture
governing such series of Qualifying Convertible Notes) and/or in connection with the
exercise by such holders of their conversion rights and the Company satisfies its
conversion obligation upon such exercise in full or in part in cash, and the
aggregate amount of all such cash payments exceeds $30,000,000 (such amount, the
“Section 8.4(c) Threshold”); provided, however, that following the occurrence of
the first Section 8.4(c) Payment (if any), the Section 8.4 (c) Threshold shall be
reduced from $30,000,000 to $5,000,000.”
(e) Section 8.4 of the Existing Note Agreement is hereby amended by adding a new clause (c) as
follows:
“(c) Subject to the limitations provided in the last sentence of
this Section 8.4(c), if a Section 8.4(c) Payment occurs prior to the latest maturity
date of any outstanding Series of Notes, the Company will promptly give written
notice (the “Section 8.4(c) Prepayment Notice”) thereof to each holder of a Note,
which notice shall (i) refer specifically to this Section 8.4(c), and specify the
amount of the Section 8.4(c) Payment, (ii) specify the Relevant Share of an amount
equal to the Section 8.4(c) Payment and the ratable portion thereof to be prepaid in
respect of each Note (determined based on the unpaid principal amount of each Note
in proportion to the aggregate unpaid principal amount of all Notes of all Series at
the time outstanding), (iii) specify a Business Day not less than 30 calendar days
and not more than 60 calendar days after the date of the Section 8.4(c) Prepayment
Notice (the “Section 8.4(c) Prepayment Date”) and specify the Section 8.4(c)
Response Date (as defined below) and (iv) offer to prepay on the Section 8.4(c)
Prepayment Date such ratable portion of each Note together with accrued and unpaid
interest to, but not including, the Section 8.4(c) Prepayment Date. Each holder of
a Note shall notify the Company of such holder’s acceptance or rejection of such
offer by giving written notice of such acceptance or rejection to the Company within
20 Business Days of the date of the Section 8.4(c) Prepayment Notice (the “Section
8.4(c) Response Date”). On the Section 8.4(c) Prepayment Date, the Company shall
prepay such ratable portion of each Note held by the holders who have accepted such
offer in accordance with this Section 8.4(c) at a price in respect of each Note held
by such holder equal to the principal amount of such ratable portion of such Note
together with accrued and unpaid interest to, but not including, the Section 8.4(c)
Prepayment Date; provided, however, that the failure by a holder of
any Note to respond to such offer in writing on or before the Section 8.4(c)
Response Date shall be deemed to be a rejection of such offer. For the avoidance of
doubt, following a prepayment of Notes by the Company pursuant to this Section
8.4(c), the Company shall not be required to make another offer to prepay Notes
pursuant to this Section 8.4(c) until the occurrence of a new Section 8.4(c)
Payment. For the avoidance of
doubt, this Section 8.4(c) will apply only with respect to a Section 8.4(c) Payment
on Qualifying Convertible Notes.
(f) Section 9 of the Existing Note Agreement is hereby amended by adding a new Section 9.8 as
follows:
“9.8. Optional Prepayment of the Notes and Partial Prepayment of the Term Loan.
The Company will, within 45 calendar days after the date of issuance on or prior to
December 31, 2010 by the Company of Qualifying Convertible Notes, (i) prepay all of
the outstanding Notes pursuant to Section 8.2 and (ii) prepay outstanding borrowings
under the Term Loan under the Bank Credit Agreement in an amount equal to the lesser
of $200.0 million and such amount equal to the difference between the gross proceeds
from such offering and the amount applied to prepay all of the outstanding Notes
pursuant to Section 8.2.”
(g) Section 10.1(i) of the Existing Note Agreement is hereby amended and restated in its
entirety as follows:
“Indebtedness in respect of (a) convertible notes, provided that (i) such
Indebtedness does not provide for any scheduled repayment, mandatory redemption or
sinking fund obligation prior to six months after the maturity date of the Series B
Notes and (ii) such Indebtedness is unsecured and subordinated, pursuant to
subordination provisions in form and substance reasonably satisfactory to the
Required Holders, in right of payment to the Notes and (b) Qualifying Convertible
Notes; and”
(h) Section 10.6 of the Existing Note Agreement is hereby amended by adding the following
proviso to the end of clause (b)(ii) thereof:
“provided, however, that this clause (b)(ii) shall not apply to any Restricted
Payment made in connection with any convertible note hedge transactions, warrant
transactions and capped call transactions, in each case entered into in connection
with any series of Qualifying Convertible Notes”;
(i) Section 10.11 of the Existing Note Agreement is hereby amended by adding the following
parenthetical to the end of the last sentence thereof:
| “(including, among other Swap Agreements, convertible note hedge transactions, warrant transactions and capped call transactions, in each case entered into in connection with any series of Qualifying Convertible Notes)”; and |
(j) Section 11 of the Existing Note Agreement is hereby amended by adding the following
proviso at the end of clause (f) thereof:
“provided, however, that in connection with any series of Qualifying Convertible
Notes (1) any conversion of such Indebtedness by a holder thereof into shares of
Common Stock, cash or a combination of cash and shares of Common Stock; (2) the
rights of holders of such Indebtedness to convert into shares of Common
Stock, cash or a combination of cash and shares of Common Stock; (3) the rights of
holders of such Indebtedness to require any repurchase by the Company upon a
fundamental change of such Indebtedness in cash, and (4) the termination of any of
Swap Agreements entered into in connection with a convertible note offering, shall
not constitute an Event of Default”.
Section 4. Representations and Warranties. The Company represents and warrants to each
Noteholder on the date of effectiveness of this Amendment that:
(a) the representations and warranties of the Company set forth in the Note Agreement, are
true and correct in all material respects on and as of the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date), except for the representations and warranties of the Company set forth in Sections
5.3, 5.4, 5.5, 5.12(b), 5.13 and 5.15 of the Note Agreement, which were true and correct in all
material respects on and as of the date of the Note Agreement (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific date);
(b) this Amendment has been duly authorized, executed and delivered by the Company and this
Amendment, the Note Agreement and the Notes each constitute the legal, valid and binding
obligation, contract and agreement of the Company enforceable against the Company in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting creditors’ rights
generally;
(c) the execution, delivery and performance by the Company of this Amendment (i) does not
require the consent or approval of any governmental or regulatory body or agency, and (ii) will not
(A) violate (1) any provision of law, statute, rule or regulation or the certificate of
incorporation, bylaws or other constitutive document of the Company, (2) any order of any court or
any rule, regulation or order of any other agency or government binding upon the Company, or (3)
any provision of any material indenture, agreement or other instrument to which the Company is a
party or by which its properties or assets are or may be bound, including, without limitation, the
Bank Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse
of time or both) a default under any indenture, agreement or other instrument referred to in clause
(ii)(A)(3) of this Section 4(c);
(d) immediately prior to, and immediately after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing under the Note Agreement; and
(e) neither the Company nor any of its Affiliates has paid or agreed to pay any fees or other
consideration to any creditor in connection with obtaining of the amendment described in Sections
5(d) and (e) below, except for fees paid to lenders and agents in connection with the amendment to
the Bank Credit Agreement.
Section 5. Conditions to Effectiveness. This Amendment and the Consent shall become
effective as of the date the following conditions precedent have been satisfied:
(a) the execution and delivery hereof by the Company and the Required Holders;
(b) the payment by the Company of all reasonable fees and expenses of the Noteholders relating
to this Amendment, including, but not limited to, the reasonable fees and disbursements of Xxxxxxx
XxXxxxxxx LLP, special counsel to the Noteholders;
(c) the representations and warranties set forth in Section 4 above shall be true and correct
on the date of execution and delivery hereof by the Company;
(d) Amendment No. 3 to the Bank Credit Agreement, dated as of the date hereof and in the form
of Annex B hereto, shall have been executed and delivered by the parties thereto and the
Convertible Notes Amendments (as defined therein) shall have become effective; and
(e) Amendment No. 3 to the 2004 Note Purchase Agreement, dated as of the date hereof and in
the form of Annex C hereto, shall have become effective;
provided that if the foregoing conditions precedent are not satisfied on or prior to December 31,
2010, this Amendment shall not become effective.
Section 6. Condition Subsequent. If this Amendment shall have become effective but the
Company shall not have issued Qualifying Convertible Notes on or prior to December 31, 2010, this
Amendment shall be void and of no further effect as of January 1, 2011.
Section 7. Waiver. Each holder of Notes hereby waives the 30 day prior notice
provision of Section 8.2 under the Existing Note Agreement in connection with the prepayment
contemplated by Section 9.8 of the Note Agreement, and the Company hereby agrees to provide 3
Business Days’ prior notice under Section 8.2 of the Existing Note Agreement in connection with
such prepayment.
Section 8. Miscellaneous.
8.1 Ratification; Agreement Unchanged. The Existing Note Agreement and the Existing
Notes are in all respects ratified and confirmed, and the terms, covenants and agreements thereof
shall remain unchanged and in full force and effect except as amended hereby.
8.2 References to Note Agreement and Notes. From and after the effective date of this
Amendment, all references to “this Agreement” in the Existing Note Agreement and in the Existing
Notes shall be deemed to be references to the Note Agreement.
8.3 Execution in Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile
transmission or electronic mail shall be effective as delivery of a manually executed counterpart
of this Amendment.
8.4 Governing Law. This Amendment 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 permit or require the application of
the laws of a jurisdiction other than such State.
Section 9. Subsidiary Guarantors. Each of the Subsidiary Guarantors consents and
agrees to the amendments to the Existing Note Agreement effected by this Amendment and ratifies and
reaffirms its obligations under the Subsidiary Guaranty Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed
and delivered as of the day and year first written above.
| TELEFLEX INCORPORATED | ||
| By: \s\ C. Xxxxxxx Xxxxxx | ||
| Name: C. Xxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
| SUBSIDIARY GUARANTORS | ||
| ARROW INTERNATIONAL INC. | ||
| ARROW INTERNATIONAL INVESTMENT CORP. | ||
| ARROW INTERVENTIONAL INC. | ||
| SIERRA INTERNATIONAL INC. | ||
| SPECIALIZED MEDICAL DEVICES, LLC | ||
| TECHNOLOGY HOLDING COMPANY | ||
| TELAIR INTERNATIONAL INCORPORATED | ||
| TELEFLEX MEDICAL INCORPORATED | ||
| TFX EQUITIES INCORPORATED | ||
| TFX INTERNATIONAL CORPORATION | ||
| TFX MARINE INCORPORATED | ||
| TFX NORTH AMERICA INC. | ||
| THE XXXXXX MEDICAL DISTRIBUTION CORPORATION | ||
| By: \s\ C. Xxxxxxx Xxxxxx | ||
| Name: C. Xxxxxxx Xxxxxx | ||
| Title: (1) Vice President and Treasurer (other than for Technology Holding Company, TFX Equities Incorporated, TFX International Corporation and TFX North America Inc.) | ||
| (2) President and Treasurer (in the case of TFX North America Inc.) | ||
| (3) Vice President (in the case of TFX Equities Incorporated) | ||
| (4) President (in the case of Technology Holding Company and TFX International Corporation) |
ANNEX A
ARTICLE [10].
SUBORDINATION
SUBORDINATION
Section [10.01] Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees, that the Indebtedness
evidenced by the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article [10], to the prior payment in full of all Senior Debt (whether outstanding
on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
Section [10.02] Liquidation; Dissolution; Bankruptcy.
(a) Upon any distribution to creditors of the Company in a liquidation or dissolution
of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property, in an assignment for the benefit of
creditors or any marshaling of the Company’s assets and liabilities:
(1) holders of Senior Debt will be entitled to receive payment in full of all Obligations
due in respect of such Senior Debt (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt) before the Holders of Notes will be
entitled to receive any payment with respect to the Notes; and
(2) until all Obligations with respect to Senior Debt (as provided in clause (1) above) are
paid in full, any distribution to which Holders would be entitled but for this Article [10] will be
made to holders of Senior Debt, as their interests may appear.
(b) To the extent any payment of Senior Debt is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person under any bankruptcy, reorganization,
insolvency, receivership or similar proceeding, the 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 provisions of this Article 10 will be applied accordingly.
Section [10.03] Default on Designated Senior Debt.
(a) The Company may not make, directly or indirectly through any Subsidiary or
other
Person, any payment or distribution to the Trustee or any Holder in respect of Obligations with
respect to the Notes and may not acquire from the Trustee or any Holder any Notes for cash or
property until all principal and other Obligations with respect to the Senior Debt have been paid
in full if:
(1) a default in the payment of principal, premium, if any, interest or any other Obligation
due on any Designated Senior Debt (a “Payment Default”) occurs and is continuing
(including, without limitation, a payment that has become due as a result of the acceleration of
any Designated Senior Debt); or
(2) any other default (a “Nonpayment Default”) occurs and is continuing on any
series of Designated Senior Debt that permits holders of that series of Designated Senior Debt to
accelerate its maturity and the Trustee receives a notice of such default (a “Payment
Blockage Notice”) from the Company or a Representative of such holders. The Trustee shall
promptly deliver a copy of any
Payment Blockage Notice received by it to the Company and the Company shall promptly deliver such
copy to all holders of Designated Senior Debt. If the holders of a majority in principal amount of
all Designated Senior Debt outstanding at the time such Payment Blockage Notice is delivered to the
Company shall, within 10 days of their receipt thereof, deliver to the Company and the Trustee a
notice rescinding such Payment Blockage Notice, such Payment Blockage Notice shall be deemed not to
have been delivered for all purposes of this Indenture. If the Trustee receives any such Payment
Blockage Notice, no subsequent Payment Blockage Notice will be effective for purposes of this
Section [10.03] unless and until at least 360 days have elapsed since the delivery of the
immediately prior Payment Blockage Notice.
No Nonpayment Default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee may be, or may be made, the basis for a subsequent Payment Blockage
Notice unless such default has been cured or waived for a period of not less than 90 days.
(b) The Company may and will resume payments on and distributions in respect of
the Notes
and may acquire them upon the earlier of:
(1) in the case of a Payment Default, upon the date upon which such default is cured or
waived, and
(2) in the case of a Nonpayment Default, upon the earlier of the date on which such Nonpayment
Default is cured or waived or 179 days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated Senior Debt has been accelerated (in
which event the foregoing subclause (1) shall apply),
if this Article [10] otherwise permits such payment, distribution or acquisition at the time of
such payment, distribution or acquisition.
Section [10.04] Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default, the Company may not
make, directly or indirectly through any Subsidiary or other Person, any payment or distribution to
the Trustee or any Holder in respect of Obligations with respect to the Notes and may not acquire
from the Trustee or any Holder any Notes for cash or property until all principal and other
Obligations with respect to the Senior Debt have been paid in full or such acceleration is
rescinded in accordance with the terms of this Indenture. The Company will promptly notify holders
of Senior Debt of any such acceleration.
Section [10.05] When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder of the Notes receives any payment of any
Obligations with respect to the Notes at a time when the payment is prohibited by Section [10.03]or
Section [10.04], such payment will be held by the Trustee or such Holder, in trust for the benefit
of, and will be paid forthwith over and delivered, upon written request, to, the holders of Senior
Debt as their interests may appear or their Representative, if any, under the agreement, indenture
or other document (if any) pursuant to which Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of all Obligations with respect to Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to perform only those
obligations on the part of the Trustee as are specifically set forth in this Article [10], and no
implied
covenants or obligations with respect to the holders of Senior Debt will be read into this
Indenture against the Trustee. The Trustee will not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and will not be liable to any such holders if the Trustee pays over or
distributes to or on behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Debt are then entitled by virtue of this Article [10], except if such payment
is made as a result of the willful misconduct or gross negligence of the Trustee.
Section [10.06] Notice by Company.
The Company will promptly notify the Trustee and the Paying Agent of any facts known to the
Company that would cause a payment of any Obligations with respect to the Notes to violate this
Article [10], but failure to give such notice will not affect the subordination of the Notes to the
Senior Debt as provided in this Article [10].
Section [10.07] Subrogation.
After all Senior Debt is paid in full and until the Notes are paid in full, Holders of Notes
will be subrogated (equally and ratably with all other Indebtedness pari passu with the
Notes) to the rights of holders of Senior Debt to receive distributions applicable to Senior Debt
to the extent that distributions otherwise payable to the Holders of Notes have been applied to the
payment of Senior Debt. A distribution made under this Article [10] to holders of Senior Debt that
otherwise would have been made to Holders of Notes is not, as between the Company and Holders, a
payment by the Company on the Notes.
Section [10.08] Relative Rights.
This Article [10] defines the relative rights of Holders of Notes and holders of Senior Debt.
Nothing in this Indenture will:
(1) impair, as between the Company and Holders of Notes, the obligation of the
Company, which is absolute and unconditional, to pay principal of, interest and Additional
Interest, if any, on, the Fundamental Change Repurchase Price of, and to pay or deliver any amount
due upon conversion of, the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and creditors of the Company other
than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of Notes from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders and owners of Senior Debt
to receive distributions and payments otherwise payable to Holders of Notes.
If the Company fails because of this Article [10] to pay principal of, interest or Additional
Interest, if any, on, the Fundamental Change Repurchase Price of, or to pay or deliver any amount
due upon conversion of, the Notes in accordance with their terms, the failure is still a Default or
Event of Default.
Section [10.09] Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of the Indebtedness
evidenced by the Notes may be impaired by any act or failure to act by the Company or any Holder or
by the failure of the Company or any Holder to comply with this Indenture.
Whenever a distribution is to be made or a notice given to holders of any series of Senior
Debt, the distribution may be made and the notice given to their Representative, if they have
appointed one, and if no Representative has been appointed by the holders of any series of Senior
Debt, such distribution or notice shall be made or given directly to such holders.
Upon any payment or distribution of assets of the Company referred to in this Article [10],
the Trustee and the Holders of Notes will be entitled to rely upon any order or decree made by any
court of competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the Trustee or to the
Holders of Notes for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article [10].
Section [10.11] Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article [10] or any other provision of this Indenture,
the Trustee will not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment or distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee has received at its Corporate Trust
Office at least three Business Days prior to the date of such payment written notice of facts that
would cause the payment of any Obligations with respect to the Notes to violate this Article [10],
except for any acceleration of the Notes prior to making any such payment or distribution which is
known by any officer of the Trustee prior to making any such payment or distribution. The notice
may only be given by the Company or a Representative. For the avoidance of doubt, no such notice
shall constitute a Payment Blockage Notice unless delivered in accordance with Section 10.03(a)(2).
Nothing in this Article [10] will impair the claims of, or payments to, the Trustee under or
pursuant to [reference to “Compensation and Indemnity” section]
hereof.
The Trustee in its individual or any other capacity may hold Senior Debt with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights.
Section [10.12] Authorization to Effect Subordination; Filing Proof of Claim.
Each Holder of Notes, by the Holder’s acceptance thereof, authorizes and directs the Trustee
on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article [10], and appoints the Trustee to act as such Holder’s
attorneyin-fact for any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in [reference to
“Trustee May File Proofs of Claim” section] hereof at least 30 days
before the expiration of the time to file such claim or any Representative, are hereby authorized
to file an appropriate claim for and on behalf of the Holders of the Notes.
Section [10.13] Reliance and Amendments.
(a) Each Holder of Notes by its acceptance thereof acknowledges and agrees that the
subordination provisions set forth in this Article [10] are, and are intended to be, an inducement
and a consideration for each holder of any Senior Debt, whether such Senior Debt was created or
acquired before or after the issuance of the Notes, to acquire and continue to hold, or to continue
to hold, such Senior Debt, and such holder of Senior Debt shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to hold or in continuing to
hold such Senior Debt.
(b) The provisions of this Article [10] may not be amended or modified without the written
consent of the holders of all Senior Debt. In addition, any amendment to, or waiver of, the
provisions of this Article [10] that adversely affects the rights of the Holders of the Notes will
require the consent of the Holders of a majority in aggregate principal amount of Notes then
outstanding.
Section [10.14] No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section [10.09], the holders of Senior Debt may,
at any time and from time to time, without the consent of or notice to the Trustee or the Holders,
without incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article 10 or the obligations hereunder of the Holders to the
holders of Senior Debt, do any one or more of the following: (a) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner
for the collection of Senior Debt; and (d) exercise or refrain from exercising any rights against
the Company and any other Person.
ARTICLE [11].
NOTE GUARANTEES
NOTE GUARANTEES
Section [11.02]
[The Obligations of each Guarantor under its Note Guarantee pursuant to this Article 11
will be junior and subordinated to the Senior Debt of such Guarantor on the same basis as the Notes
are junior and subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders will have the right to receive and/or retain payments by any
of the Guarantors only at such times as they may receive and/or retain payments in respect of the
Notes pursuant to this Indenture, including Article [10] hereof.]
| Selected Definitions: |
“Additional Interest” means the additional interest payable at the election of the
Company as the sole remedy for an Event of Default relating to the failure by the Company to comply
with the Company’s Filing Obligations [as such term may be defined in the Indenture]
and for any failure by the Company to comply with the requirements of Section 314(a)(1) of the
Trust Indenture Act of 1939, as amended.
“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for
the relief of
debtors.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general partner of the
partnership;
(3) with respect to a limited liability company, the managing member or members or any
controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving
a similar function.
“Business Day” means any day other than a Saturday, a Sunday or any other
day on which the Federal Reserve Bank of New York is authorized or obligated by law or
executive order to close or be closed.
“Capital Lease Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate
stock;
(3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock, whether
or not such debt securities include any right of participation with Capital Stock.
“Common Stock” means the common stock of the Company, par value $1.00 per share,
at the date of this Indenture, or such other Reference Property into which the Company’s common
stock is changed pursuant to [reference to the “Effect of Recapitalization,
Reclassification, Consolidation, Merger or Sale” section].
“Corporate Trust Office” will be at the address of the Trustee specified in
[reference to the “Notices” section] hereof or such other
address as to which the Trustee may give notice to the Company.
“Credit Agreement” means that certain Credit Agreement, dated as of October 1,
2007, by and among the Company, the guarantors party thereto, the lenders party thereto, JPMorgan
Chase Bank, N.A., as Administrative Agent and Collateral Agent and Bank of America, N.A., as
Syndication Agent, providing for up to $1,800,000,000 of revolving credit and term loan borrowings,
including any related notes, Guarantees, collateral documents, instruments and agreements executed
in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded,
replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by
means of sales of debt securities) in whole or in part from time to time.
“Default” means any event that is, or with the passage of time or the giving
of notice or both would be, an Event of Default.
| “Designated Senior Debt” means: |
(5) any Indebtedness outstanding under the Credit Agreement;
(6) any Indebtedness outstanding under the Existing Senior Notes; and
(7) any other Senior Debt the principal amount of which is $[25.0]
million or more and that has been designated by the Company as “Designated Senior Debt.”
“Event of Default” has the meaning specified in [reference to the
“Events of Default” section].
“Existing Note Purchase Agreement” means with respect to any series or tranche of
Existing Senior Notes, the note purchase agreement among the Company, the guarantors thereto and
the initial holders of such Existing Senior Notes, as supplemented, amended, restated, extended,
renewed, replaced or otherwise modified from time to time prior to the date hereof.
“Existing Senior Notes” (i) the Company’s (a) Series 2004-1 Tranche A Notes due
2011, (b) Series 0000-0 Xxxxxxx X Notes due 2014 and (c) Series 2004-1 Tranche C Notes due 2016,
each issued pursuant to the Existing Note Purchase Agreement, dated July 8, 2004 and (ii) the
Company’s (a) Series A Senior Notes due 2012, (b) Series B Senior Notes due 2014 and (c) Floating
Rate Series C Senior Notes due 2012, each issued pursuant to the Existing Note Purchase Agreement,
dated October 1, 2007.
“Existing Senior Note Guarantees” means the Guarantee by certain Subsidiaries of
the Company of the Company’s obligations under the Existing Notes Purchase Agreements and the
Existing Senior Notes.
“Fundamental Change Repurchase Price” has the meaning specified in
[reference to the “Repurchase of Notes at Option of the Holder upon a
Fundamental Change” section].
“GAAP” means generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board
or in such
other statements by such other entity as have been approved by a significant segment of
the accounting profession, which are in effect on the date of the Indenture.
“Guarantee” of or by any Person means any obligation, contingent or otherwise, of the
guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof;
(2) to purchase or lease property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment thereof;
(3) to maintain working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation; or
(4) as an account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation;
provided, that the term “Guarantee” will not include endorsements for collection or deposit in
the ordinary course of business. In any computation of the Indebtedness or other liabilities of
the obligor under any Guarantee, the Indebtedness or other obligations that are the subject of
such Guarantee will be assumed to be direct obligations of such obligor.
[“Guarantors” [to be agreed]]
“Hedging Obligations” means, with respect to any specified Person, the
obligations of such Person under:
(5) interest rate swap agreements (whether from fixed to floating or from floating to
fixed), interest rate cap agreements and interest rate collar agreements;
(6) other agreements or arrangements designed to manage interest rates or interest rate
risk; and
(7) commodity swap agreements, commodity cap agreements, commodity collar agreements, foreign
exchange contracts, currency swap agreements or any other agreements or arrangements designed to
protect such Person against fluctuations in, or providing for the transfer or mitigation of risks
related to, currency exchange rates or commodity prices, in each case, either generally or under
specific contingencies.
For the avoidance of doubt, any Permitted Convertible Indebtedness Call Transaction will
not constitute Hedging Obligations.
| “Holder” means a Person in whose name a Note is registered. |
“Indebtedness” of any Person means, any indebtedness of such Person
(excluding accrued expenses and commercial letters of credit, trade payables or similar obligations
to a trade creditor accrued in the ordinary course of business), whether or not contingent, without
duplication:
(8) all Obligations of such Person for borrowed money (including, without
limitation, any such obligations convertible into Capital Stock or other securities);
(9) all Obligations of such Person evidenced by bonds, debentures, notes or similar
instruments or letters of credit (or, without duplication, reimbursement agreements in respect
thereof);
(10) all Obligations of such Person in respect of the deferred and unpaid purchase price of
any property or services due more than six months after such property is acquired or such services
are completed, except any earn-out obligations until such obligation becomes a liability on the
balance sheet of such Person in accordance with GAAP and if not paid after becoming due and payable
(excluding current accounts payable incurred in the ordinary course of business);
(11) all Indebtedness of others secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has been assumed;
(12) all Guarantees by such Person of Indebtedness of others;
(13) all Capital Lease Obligations of such Person;
(14) all obligations, contingent or otherwise, of such Person as an account party in respect
of letters of credit and letters of guaranty;
(15) all obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances; and
(16) representing any Hedging Obligations.
For the avoidance of doubt, any Permitted Convertible Indebtedness Call Transaction will not
constitute Indebtedness. The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or other relationship
with such entity, except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
“Indenture” means the indenture for the Notes among the Company, the
[Guarantors] and the Trustee, as amended or supplemented from time to time.
[“Note Guarantee” means the Guarantee by each Guarantor of the Company’s
obligations under this Indenture and the Notes, executed pursuant to the provisions of this
Indenture.]
“Notes” means any of the Company’s [.]% Convertible Senior
Subordinated Notes due 2017, as amended or supplemented from time to time, issued under the
Indenture.
“Obligations” means any principal, interest, penalties, fees, premiums, make whole
amounts, indemnifications, reimbursements, damages and other costs, expenses and liabilities
payable under the documentation governing any Indebtedness.
“Paying Agent” means an office or agency where Notes may be presented for
payment.
“Permitted Convertible Indebtedness Call Transaction” means (i) any call or capped
option (or substantively equivalent derivative transaction) on Common Stock purchased by the
Company or one of its Subsidiaries in connection with the issuance of the Notes (a
“Permitted Bond Hedge Transaction”); and (ii) any call option, warrant or right to
purchase (or substantively equivalent derivative transaction) on Common Stock sold by the Company
substantially concurrently with any purchase of a related Permitted Bond Hedge Transaction (a
“Permitted Warrant Transaction”).
“Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited liability company or
government or other entity.
“Reference Property” has the meaning specified in [reference to the
“Effect of Recapitalization, Reclassification, Consolidation, Merger or
Sale” section].
“Representative” means the indenture trustee or other trustee, agent or
representative for any Senior Debt; provided that, if no Representative has been
appointed by any series of Senior Debt, any holder or group of holders of such series of Senior
Debt certifying that it holds a percentage of such series of Designated Senior Debt sufficient to
cause the acceleration thereof will be deemed a Representative.
“Senior Debt” means:
(17) all Indebtedness of the Company [or any Guarantor] outstanding under
the Credit Agreement, all Existing Senior Notes, all Existing Senior Note Guarantees, all Hedging
Obligations, all Treasury Management Arrangements and all Obligations with respect to any of the
foregoing;
(18) any other Indebtedness of the Company [or any Guarantor] permitted to
be incurred under the terms of this Indenture, unless the instrument under which such Indebtedness
is incurred expressly provides that it is on a parity with or subordinated in right of payment to
the Notes [or any Note Guarantee]; and
(19) all Obligations with respect to the items listed in the preceding clauses (1) and (2).
Notwithstanding anything to the contrary in the foregoing, Senior Debt will not include:
(20) any liability for federal, state, local or other taxes owed or owing by the Company;
(21) any intercompany Indebtedness of the Company or any of its Subsidiaries to the Company or
any of its Affiliates;
(22) any Indebtedness incurred for the purchase of goods or materials or for services obtained
in the ordinary course of business (other than with the proceeds of revolving credit borrowings
permitted hereby); or
(23) the portion of any Indebtedness that is incurred in violation of this Indenture;
provided that Indebtedness under Designated Senior Debt will not cease to be “Senior
Debt” by virtue of this clause (4) if it was advanced on the basis of an Officers’ Certificate to
the effect that it was permitted to be incurred under this Indenture.
“Subsidiary” means, with respect to any specified Person:
(24) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of any
contingency and after giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors, managers or trustees of
the corporation, association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person
(or a combination thereof); and
(25) any partnership or limited liability company of which (a) more than 50% of the capital
accounts, distribution rights, total equity and voting interests or general and limited
partnership interests, as applicable, are owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether
in the form of membership, general, special or limited partnership interests or otherwise, and
(b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise
controls such entity.
“Treasury Management Arrangement” means any agreement or other arrangement governing the
provision of treasury or cash management services, including deposit accounts, overdraft, credit
or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services and other cash management services.
“Trustee” means [.], until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors of such Person.
ANNEX B
[Amendment No. 3 to the Bank Credit Agreement]
ANNEX C
[Amendment No. 3 of the 2004 Note Purchase Agreement]
