Exhibit 4.1
--------------------------------------------------------------------------------
XXXXXXX XXXXXXX, INC.,
AS ISSUER
XXXXXXX CORPORATION AND HYBRITECH INCORPORATED,
AS GUARANTORS
AND
CITIBANK, N.A.
AS TRUSTEE
------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of November ___, 2001
--------------------------------------
Supplemental to Senior Indenture dated as of April 25, 2001
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.......................................................................1
Section 102. Conflicts with Base Indenture.....................................................7
ARTICLE II
FORM OF NOTES
Section 201. Form of Notes.....................................................................8
ARTICLE III
THE NOTES
Section 301. Amount; Series; Terms.............................................................8
Section 302. Denominations.....................................................................8
Section 303. Execution, Authentication, Delivery and Dating....................................9
Section 304. Book-Entry Provisions for Global Securities.......................................9
Section 305. Add On Notes.....................................................................10
Section 306. Use of Proceeds..................................................................11
ARTICLE IV
REDEMPTION OF SECURITIES
Section 401. Optional Redemption..............................................................11
ARTICLE V
COVENANTS AND REMEDIES
Section 501. Limitation on Liens..............................................................11
Section 502. Limitation on Sale and Leaseback Transactions....................................12
Section 503. Future Note Guarantors...........................................................13
Section 504. Events of Default................................................................13
Section 505. Limitations on Consolidation, Etc................................................15
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VI
THE NOTE GUARANTEES
Section 601. Unconditional Guarantee..........................................................16
Section 602. Additional Note Guarantors.......................................................17
Section 603. Release of a Note Guarantee......................................................18
Section 604. Waiver of Subrogation............................................................18
Section 605. Reliance on Judicial Order or Certificate of Liquidating Agent
Regarding Dissolution............................................................19
Section 606. Article VI Applicable to Paying Agents...........................................19
Section 607. No Suspension of Remedies........................................................19
ARTICLE VII
Section 701. Supplemental Indentures with Consent of Holders..................................19
ARTICLE VIII
MISCELLANEOUS
Section 801. Sinking Funds....................................................................19
Section 802. Confirmation of Indenture........................................................20
Section 803. Counterparts.....................................................................20
Section 804. Governing Law....................................................................20
EXHIBIT A Form of Note.....................................................................A-1
EXHIBIT B Form of Supplemental Indenture in Respect of Note Guarantee......................B-1
ii
FIRST SUPPLEMENTAL INDENTURE, dated as of November ___, 2001
(this "Supplemental Indenture"), among Xxxxxxx Xxxxxxx, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
Xxxxxxx Corporation, a corporation duly organized and existing under the laws of
the State of Delaware, Hybritech Incorporated, a corporation duly organized and
existing under the laws of the State of California (the "Guarantors"), and
Citibank, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (the "Trustee") under the
Senior Indenture dated as of April 25, 2001 between the Company and the Trustee
(the "Base Indenture").
WHEREAS, Section 901 (7) of the Base Indenture provides that
the Company and Trustee, at any time and from time to time, may enter into one
or more indentures supplemental to the Base Indenture to establish the form or
terms of Securities of any series as permitted by Sections 201 and 301 thereof;
WHEREAS, the Base Indenture also provides for the issuance
from time to time of unsecured senior debentures, notes or other evidences of
indebtedness (the "Securities");
WHEREAS, the Company has duly authorized the creation of a
series of its Securities denominated as the "o% Senior Notes Due 2011" (the
"Notes");
WHEREAS, the Guarantors are executing this Supplemental
Indenture pursuant to which the Guarantors will guarantee the Company's
obligations under the Notes on the terms and conditions set forth herein;
WHEREAS, the entry into this Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the Base
Indenture; and
WHEREAS, the Company has duly authorized the execution and
delivery of this Supplemental Indenture, to establish the Notes as provided for
in this Supplemental Indenture, and to make this Supplemental Indenture a valid
agreement of the Company, in accordance with their and its terms:
NOW, THEREFORE, for and in consideration of the premises and
purchase of the Notes issued on or after the date of this Supplemental Indenture
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
Article I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.
Capitalized terms used herein and not otherwise defined herein
have the meanings assigned to them in the Base Indenture. The words "herein",
"hereof" and "hereby" and other
words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.
As used herein, the following terms have the specified meanings:
"Add On Notes" has the meaning specified in Section 305 of
this Supplemental Indenture.
"Attributable Value," when used with respect to any sale and
leaseback transaction means, as of the time of determination, the total
obligation (discounted to present value at the interest rate assumed in making
calculations in accordance with FAS 13) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such sale and leaseback transaction.
"Bank Indebtedness" means any and all Indebtedness or other
amounts payable under or in respect of the Credit Facility or any refinancing in
respect thereof, and any Refinancing Indebtedness in respect thereof, including
in each case (without limitation) principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, Guarantees,
other monetary obligations of any nature and all other amounts payable under or
in respect of any of the foregoing.
"Base Indenture" has the meaning specified in the recitals of
this Supplemental Indenture.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means, at the time
any determination thereof is to be made, the amount of the liability in respect
of a capital lease for property leased by such Person that would at such time be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"Capital Stock" of any Person means (1) in the case of a
corporation, corporate stock; (2) in the case of an association, limited
liability company or business entity, any and all Equity Interests; (3) in the
case of a partnership, partnership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person, including any Preferred Stock.
"Commodity Price Protection Agreement" means any forward
contract, commodity swap, commodity option or other similar financial agreement
or arrangement relating to, or the value of which is dependent upon,
fluctuations in commodity prices, but shall not
2
include contracts for the purchase of raw materials by the Company or any
Restricted Subsidiary for its own use at fixed prices in the ordinary course of
business.
"Company" has the meaning specified in the recitals of this
Supplemental Indenture.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Reference Treasury Dealer as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (A) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations, or (C)
if only one Reference Treasury Dealer Quotation is received, such Quotation.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (1) all current liabilities (excluding any indebtedness for
money borrowed having a maturity of less than 12 months from the date of the
most recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower); and (2) all goodwill, trade names, patents, unamortized debt discount
and expense and any other like intangibles, all as set forth on the most recent
consolidated balance sheet of the Company and computed in accordance with GAAP.
"Credit Agreement" means the credit agreement dated as of
October 31, 1997, among the Company, the banks and other financial institutions
party thereto from time to time, the initial issuing bank named therein,
Citicorp USA, Inc., as agent and Citicorp Securities, Inc., as arranger, as such
agreement may be amended, supplemented, waived or otherwise modified from time
to time, or refunded, refinanced, restructured, replaced, renewed, repaid,
increased or extended from time to time (whether in whole or in part, whether
with the original agents and lenders or other agents and lenders or otherwise,
and whether provided under the original Credit Agreement or otherwise).
"Credit Facility" means the collective reference to the Credit
Agreement, any notes and letters of credit issued pursuant thereto and any
guarantees, security agreements, pledges, mortgages, letter of credit
applications and other collateral documents, and other instruments and
documents, executed and delivered pursuant to or in connection with any of the
foregoing, in each case as the same may be amended, supplemented, waived or
otherwise modified from time to time, or refunded, refinanced, restructured,
replaced, renewed, repaid, increased or extended from time to time (whether in
whole or in part, whether with the original agents and lenders or other agents
and lenders or otherwise, and whether provided under the original Credit
Agreement or otherwise).
3
"Currency Hedging Arrangements" means one or more of the
following agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements designed to protect against the fluctuations
in currency values.
"Default" means any event that is, or after the giving of
notice or passage of time or both would be, an Event of Default.
"Depositary" means The Depositary Trust Company.
"Disqualified Stock" means:
(1) any Preferred Stock of any Restricted Subsidiary; and
(2) any Capital Stock that, by its terms (or by the terms of
any security into which such Capital Stock is convertible
or for which such Capital Stock is exchangeable), or upon
the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder
thereof (other than upon a change of control of the
Company in circumstances where the holders of the Notes
would have similar rights), in whole or in part on or
prior to the Stated Maturity of the Notes.
"Dollar" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debt.
"Equipment Held for Resale" means instrument systems and
related accessories and components manufactured or assembled by the Company that
are owned and held for placement in facilities of the Company's customers.
"Equity Interest" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including limited liability company interests, in such
Person.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the date hereof, including those 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
statement by such other entity as approved by a significant segment of the
United States accounting profession.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person, and
4
any obligation, direct or indirect, contingent or otherwise, of such Person (1)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation of such Person (whether arising by virtue
of partnership arrangements, or by agreement to keep well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise); or (2) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part), provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means each of Xxxxxxx Corporation, Hybritech
Incorporated and any Restricted Subsidiary that has issued a Note Guarantee.
"Indebtedness" means, with respect to any Person, without
duplication, and whether or not contingent (1) all indebtedness of such Person
for borrowed money or which is evidenced by a note, bond, debenture or similar
instrument; (2) all obligations of such Person to pay the deferred or unpaid
purchase price of property or services, which purchase price is due more than
one year after the date of placing such property in service or taking delivery
and title thereto or the completion of such service; (3) all Capital Lease
Obligations of such Person; (4) all obligations of such Person in respect of
letters of credit or bankers' acceptances issued or created for the account of
such Person; (5) to the extent not otherwise included in this definition, all
net obligations of such Person under all Interest Rate Agreements, Currency
Hedging Arrangements or Commodity Price Protection Agreements of such Person;
(6) all liabilities of others of the kind described in the preceding clause (1),
(2) or (3) secured by any Lien on any property owned by such Person even if such
Person has not assumed or otherwise become liable for the payment thereof, to
the extent of the value of the property subject to such Lien; (7) all
Disqualified Stock issued by such Person; and (8) to the extent not otherwise
included, any Guarantee by such Person of any other Person's indebtedness or
other obligations described in clauses (1) through (7) above. "Indebtedness" of
the Company and its Restricted Subsidiaries shall not include (1) current trade
payables incurred in the ordinary course of business and payable in accordance
with customary practices; and (2) non-interest bearing installment obligations
and accrued liabilities incurred in the ordinary course of business which are
not more than 90 days past due.
"Indenture" means the Base Indenture as originally executed,
as supplemented by this Supplemental Indenture and as it may from time to time
be supplemented or amended by one or more indentures supplemental thereto
entered into pursuant to the applicable provisions thereof, including, for all
purposes of that instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern that
instrument and any such supplemental indenture, respectively.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Supplemental Indenture or under the Notes, to
pay principal of, premium, if any, and interest on the Notes when due and
payable, whether at maturity, by acceleration, call for redemption or repurchase
or otherwise, and all other amounts due or to become due under or in connection
with this Supplemental Indenture, the Notes or the Note Guarantees and the
performance of all other obligations to the Trustee (including, but not limited
to, payment of all
5
amounts due the Trustee under Section 607 of the Base Indenture) and the Holders
of the Notes under this Indenture, the Notes and the Note Guarantees, according
to the terms thereof.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, encumbrance, or other security arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Note Guarantee" means each guarantee of the Notes by the
Guarantors hereunder and any guarantee of the Notes that may from time to time
be executed and delivered pursuant to the terms of this Supplemental Indenture.
"Notes" has the meaning specified in the recitals of this
Supplemental Indenture.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over Capital Stock of any other class of such
Person.
"Principal Property" means any real property of the Company or
any of its Subsidiaries, and any equipment located at or comprising a part of
any such property, having a net book value, as of the date of determination, in
excess of the greater of $50 million and 10% of Consolidated Net Tangible Assets
of the Company; provided, however, that Principal Property shall not include
Equipment Held for Resale.
"Redemption Date," when used with respect to any Note, means
the date specified for redemption by the Company.
"Reference Treasury Dealer" means (A) Xxxxxxx Xxxxx Barney
Inc. or Xxxxxx Xxxxxxx & Co. Incorporated (or their respective affiliates which
are Primary Treasury Dealers), and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer; and (B) any
other Primary Treasury Dealer(s) selected by the Company.
6
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
(New York City time) on the third Business Day preceding such Redemption Date.
"Refinancing Indebtedness" means any Indebtedness incurred in
connection with or given in exchange for the renewal, extension, substitution,
refunding, defeasance, refinancing, repayment or replacement (a "refinancing")
of any Indebtedness.
"Restricted Subsidiary" means any Subsidiary of the Company
which owns or leases a Principal Property.
"Securities" has the meaning specified in the recitals of this
Supplemental Indenture.
"Securities Custodian" means the custodian with respect to a
Global Note (as appointed by the Depositary) or any successor thereto, who shall
initially be the Trustee.
"Significant Subsidiary" means each Subsidiary that is a
"significant subsidiary" for purposes of Rule 1-02 of Regulation S-X under the
Securities Act.
"Stated Maturity" means, when used with respect to any
security, the date specified in such security as the fixed date on which the
payment of principal of such security is due and payable, including pursuant to
any mandatory redemption provision (but excluding any provision providing for
the purchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subsidiary" of a Person means a Person more than 50% of the
outstanding voting stock or other Equity Interests of which is owned, directly
or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition,
"voting" stock or other Equity Interests means stock or other Equity Interests
which ordinarily have voting power for the election of directors, trustees or
similar managers, whether at all times or only so long as no senior class of
stock or other Equity Interests has such voting power by reason of any
contingency.
"Supplemental Indenture" has the meaning specified in the
recitals of this Supplemental Indenture.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
7
Section 102. Conflicts with Base Indenture.
In the event that any provision of this Supplemental Indenture
limits, qualifies or conflicts with a provision of the Base Indenture, such
provision of this Supplemental Indenture shall control.
Article II
FORM OF NOTES
Section 201. Form of Notes.
The Notes shall be substantially in the form of Exhibit A
hereto which is hereby incorporated in and expressly made a part of this
Indenture.
Article III
THE NOTES
Section 301. Amount; Series; Terms.
The title of the Notes shall be "o% Senior Notes Due 2011."
The aggregate principal amount of Notes that may be authenticated and delivered
under this Supplemental Indenture shall be initially limited to $o, subject to
increase as set forth in Section 305.
The final Stated Maturity of the Notes shall be November o,
2011. The Notes shall bear interest at the rate of o% per annum, from o or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, as further provided in the form of Note annexed hereto as Exhibit
A. The Interest Payment Dates on which such interest shall be payable shall be
May o and November o of each year, and the Regular Record Dates for any interest
payable on each such Interest Payment Date shall be the immediately preceding o
and o, respectively.
The principal of, and premium, if any, and interest on the
Notes shall be payable at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, provided,
however, that at the option of the Company payment of interest on any Notes may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
The Notes will be redeemable at the option of the Company as
provided in Article IV hereof. The Notes will not be entitled to the benefit of
a sinking fund.
The Notes will be issued in the form of one or more Global
Securities, deposited with the Trustee as custodian for the Depositary or its
nominee, duly executed by the Company and authenticated by the Trustee as
provided in Section 303 and the Base Indenture.
8
Section 302. Denominations.
The Notes of each series shall be issuable only in registered
form without coupons and only in denominations of $1,000 and any integral
multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President, its Chief Financial Officer or one of its Vice
Presidents, and attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
On Company Order, the Trustee shall authenticate for original
issue Notes in an aggregate principal amount specified in the Company Order. The
Trustee shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company that it may reasonably request in connection with such
authentication of Notes. Such Company Order shall specify the amount of Notes to
be authenticated and the date on which the original issue of Notes is to be
authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for in the Base
Indenture executed by the Trustee by manual signature, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
Section 304. Book-Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in
the name of the Depositary for such Global Securities or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 204 of the Base Indenture.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security, and the Depositary may be treated by the Company, the Note Guarantors,
the Trustee and any agent of the Company, the Note Guarantors or the Trustee as
the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Note Guarantors, the Trustee or any agent of the Company, the Note Guarantors or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of
9
customary practices governing the
exercise of the rights of a beneficial owner of any Security. The registered
holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Global Securities.
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective Nominees. Interests of beneficial owners in a
Global Security may be transferred or exchanged for physical Notes in accordance
with the applicable rules and procedures of the Depositary and the provisions of
Sections 305 of the Base Indenture.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Security to beneficial owners for
physical Notes pursuant to paragraph (b), the Security Registrar shall record on
its books and records the date and a decrease in the principal amount of such
Global Security in an amount equal to the beneficial interest in the Global
Security being transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more physical Notes of like tenor and principal
amount of authorized denominations.
(d) In connection with a transfer of an entire Global Security
to beneficial owners pursuant to paragraph (b), the applicable Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the applicable Global Security, an equal aggregate principal amount
at maturity of physical Notes of authorized denominations.
(e) Any beneficial interest in one of the Global Securities
that is transferred to a Person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
Section 305. Add On Notes.
The Company may, from time to time, subject to compliance with
any other applicable provisions of this Indenture, without the consent of the
Holders, create and issue pursuant to this Indenture additional notes ("Add On
Notes") having terms and conditions set forth in Exhibit A identical to those of
the other Notes, except that Add On Notes:
(i) may have a different issue date from other Outstanding
Notes;
(ii) may have a different amount of interest payable on the
first Interest Payment Date after issuance than is payable on other
Outstanding Notes;
(iii) may have terms specified in the Add On Note Board
Resolution or Add On Note Supplemental Indenture for such Add On Notes
making appropriate adjustments to this Article III and Exhibit A (and
related definitions) applicable to such Add On Notes
10
in order to conform to and ensure compliance with the Securities Act
(or other applicable securities laws).
Section 306. Use of Proceeds.
The Company intends to apply the proceeds from the sale of the
Notes solely, directly or indirectly, in the Company's U.S. operations. In
applying the proceeds from the sale of the Notes, the Company represents that,
in no event, will any portion of the proceeds from the sale of the Notes be used
to repay the portion of any indebtedness, the proceeds of which were used to
previously fund any foreign investment or the working capital needs of any
foreign Subsidiary, foreign affiliate or other foreign entity. The Company
further represents that, in no event, will any portion of the proceeds of the
sale of the Notes be used to fund any foreign investment or the working capital
needs of any foreign Subsidiary, foreign affiliate or other foreign entity.
Article IV
REDEMPTION OF SECURITIES
Section 401. Optional Redemption.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of such Notes or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Notes being redeemed on that Redemption Date (not including any portion of any
payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semi-annual basis at the Treasury Rate, as determined by
the Reference Treasury Dealer, plus 10 basis points; plus, in each case, accrued
and unpaid interest on the Notes to the Redemption Date. Procedures for any such
redemption shall be as set forth in Article XI of the Base Indenture.
Article V
COVENANTS AND REMEDIES
Section 501. Limitation on Liens.
The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume or guarantee any Indebtedness of the
Company or any Subsidiary secured by a Lien upon any Principal Property, or upon
shares of Capital Stock or evidences of indebtedness issued by any Restricted
Subsidiary and owned by the Company or any Restricted Subsidiary, now owned or
hereafter owned by the Company, without making effective provision to secure all
of the Notes then outstanding by such Lien, equally and ratably with any and all
other Indebtedness thereby secured, so long as such Indebtedness shall be so
secured.
The foregoing restrictions shall not apply, however, to (1)
Liens on any property existing at the time of the acquisition thereof; (2) Liens
on property of a corporation existing at the time such corporation is merged
into or consolidated with the Company or a Restricted
11
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary, provided
that such Lien as a result of such merger, consolidation, sale, lease or other
disposition is not extended to property owned by the Company or such Restricted
Subsidiary immediately prior thereto; (3) Liens on property of a corporation
existing at the time such corporation becomes a Restricted Subsidiary; (4) Liens
securing indebtedness of a Restricted Subsidiary to the Company or to another
Restricted Subsidiary; (5) Liens to secure all or part of the cost of
acquisition, construction, development or improvement of the underlying
property, or to secure indebtedness incurred to provide funds for any such
purpose, provided that the commitment of the creditor to extend the credit
secured by any such Lien shall have been obtained not later than twenty-four
months after the later of (a) the completion of the acquisition, construction,
development or improvement of such property or (b) the placing in operation of
such property or of such property as so constructed, developed or improved; (6)
Liens on any property created, assumed or otherwise brought into existence in
contemplation of the sale or other disposition of the underlying property,
whether directly or indirectly, by way of share disposition or otherwise;
provided that the Company must have disposed of such property within 180 days
from the creation of such Liens and any indebtedness secured by such Liens shall
be without recourse to the Company or any Subsidiary; (7) Liens in favor of the
United States of America or any State thereof, or any department, agency or
instrumentality or political subdivision thereof, to secure partial, progress,
advance or other payments; (8) Liens to secure indebtedness of joint ventures in
which the Company or a Restricted Subsidiary has an interest, to the extent such
Liens are on property or assets of, or equity interests in, such joint ventures;
(9) Liens on Equipment Held for Resale; and (10) any indebtedness secured by
Liens existing on the date of this Supplemental Indenture or any extension,
renewal or replacement or refunding of any Lien existing on the date of this
Supplemental Indenture or referred to in clauses (1) to (3) or (5); provided,
however, that the aggregate principal amount of indebtedness secured thereby and
not otherwise authorized by clauses (1) to (3) or (5), shall not exceed the
aggregate principal amount of indebtedness, plus any premium or fee payable in
connection with any such extension, renewal, replacement, or refunding, so
secured at the time of such extension, renewal, replacement or refunding.
Notwithstanding the restrictions described above, the Company
and its Restricted Subsidiaries may incur, issue, assume or guarantee
Indebtedness secured by Liens without equally and ratably securing the Notes
then outstanding, provided, that at the time of such incurrence, issuance,
assumption or guarantee, after giving effect thereto and to the retirement of
any Indebtedness which is concurrently being retired, the aggregate amount of
all outstanding Indebtedness secured by Liens so incurred, other than any
Indebtedness secured by Liens permitted as described in clauses (1) through (10)
above, and together with all outstanding Attributable Value of all sale and
leaseback transactions permitted as described in Section 502 of this
Supplemental Indenture does not exceed 15% of the Consolidated Net Tangible
Assets of the Company.
Section 502. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted
Subsidiary to, engage in any sale and leaseback transaction involving any
Principal Property unless either (1) the Company or its Restricted Subsidiaries
would be entitled pursuant to the provisions described in
12
clauses (1) through (10) of the second paragraph of Section 501 of this
Supplemental Indenture to incur, issue, assume or guarantee indebtedness secured
by a Lien on such Principal Property without equally and ratably securing the
Notes then outstanding or (2) the Company or such Restricted Subsidiary shall
apply, or cause to be applied to the retirement of its secured debt within 120
days after the effective date of the sale and leaseback transaction, an amount
not less than the greater of (i) the net proceeds (net of all legal, title and
recording tax expenses, commissions and other fees and expenses incurred and all
federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP, as a consequence of such sale) of the sale of
the Principal Property leased pursuant to such arrangement or (ii) the Fair
Market Value of the Principal Property so leased. This restriction will not
apply to a sale and leaseback transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries or involving the taking back of a
lease for a period of less than three years.
Notwithstanding the restrictions described above, the Company
or any Restricted Subsidiary may enter into a sale and leaseback transaction
provided, that at the time of such transaction, after giving effect thereto, the
Attributable Value thereof, together with all indebtedness secured by Liens
permitted pursuant to Section 501 of this Supplemental Indenture other than all
indebtedness secured by Liens permitted as described in clauses (1) through (10)
of the second paragraph of Section 501 of this Supplemental Indenture and other
than the Attributable Value of such sale and leaseback transactions permitted by
the preceding paragraph, does not exceed 15% of Consolidated Net Tangible Assets
of the Company.
Section 503. Future Note Guarantors.
The Company will cause each Restricted Subsidiary that
Guarantees any Bank Indebtedness promptly to execute and deliver to the Trustee
a supplemental indenture substantially in the form set forth in Exhibit B to
this Supplemental Indenture pursuant to which such Restricted Subsidiary will
guarantee the Company's obligations under the Indenture and the Notes, in
accordance with and as further provided in Article VI of this Supplemental
Indenture.
Section 504. Events of Default.
In addition to the Events of Default set forth in clauses (1),
(2) and (4) of Section 501 of the Base Indenture, any one of the following
events shall constitute an "Event of Default" hereunder and thereunder whenever
used with respect to the Notes in this Indenture (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) a default by the Company in the payment of the Redemption
Price with respect to any Note when such amount becomes due and
payable;
(ii) a default in the performance, or breach, by the Company of
its obligations under Section 801 of the Base Indenture or Section 505
of this Supplemental Indenture;
(iii) a default in the performance, or breach, by the Company of
its obligations under Sections 501 and 502 of this Supplemental
Indenture, and continuance of such default or breach for a period of
30 days after there has been given, by registered or
13
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in aggregate principal
amount of the Notes a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder, unless the Trustee, or the Trustee and
the Holders of a principal amount of Notes of such series not less
than the principal amount of Notes the Holders of which gave such
notice, as the case may be, shall agree in writing to an extension of
such period prior to its expiration;
(iv) a default in the performance, or breach, by the Company of
its other obligations under the Notes or this Supplemental Indenture,
and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder, unless the Trustee, or the Trustee and the Holders of a
principal amount of Notes of such series not less than the principal
amount of Notes the Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such period prior to its
expiration;
(v) a failure to pay when due (subject to any applicable grace
period) the principal of, or acceleration of, any Indebtedness for
money borrowed by the Company or by any Restricted Subsidiary having
an aggregate principal amount outstanding of at least $50.0 million,
if in the case of any such failure, such Indebtedness has not been
discharged or, in the case of any such acceleration, such acceleration
has not been rescinded or annulled, in each case within 10 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Notes a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(vi) any final and nonappealable judgment or decree for the
payment of money in excess (net of any amount covered by insurance) of
$50.0 million against the Company or any Significant Subsidiary if (A)
an enforcement proceeding thereon is commenced by any creditor or (B)
it is not discharged, waived or stayed and remains outstanding for a
period of 60 days;
(vii) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or
any Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Restricted Subsidiary under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Restricted Subsidiary or of any substantial part of its respective
property, or ordering the winding up or liquidation of its affairs,
and the
14
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days;
(viii) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree
or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator other
similar official of the Company or any Restricted Subsidiary or of any
substantial part of its respective property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any
Restricted Subsidiary in furtherance of any such action; or
(ix) any Note Guarantee ceasing to be in full force and effect or
any Guarantor denying in writing that it has any liability under its
Note Guarantee (other than by reason of the termination of the
Indenture or the release of any such Note Guarantee in accordance with
this Indenture).
Section 505. Limitations on Consolidation, Etc.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties or assets substantially
as an entirety to the Company unless, in addition to the conditions of Section
801 of the Base Indenture being met: (1) the resulting, surviving or transferee
Person (if other than the Company) is organized and existing under the laws of
the United States, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on all the Notes and the
performance of every covenant of this Indenture on the part of the Company to be
performed or observed; (2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice of lapse of time would
become an Event of Default, or both, shall have occurred and be continuing; (3)
the Company shall deliver to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance or transfer
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Section 505 and that
all conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee, subject to Section 601 of the Base
Indenture, may rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section 505; and
(4) if, as a result of any such consolidation or merger or such conveyance,
15
transfer or lease, properties or assets of the Company would become subject to a
mortgage, pledge, lien, security interest or other encumbrance which would not
be permitted by Section 501 of this Supplemental Indenture, the Company or such
successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Notes equally and ratably with (or prior to)
all indebtedness secured thereby.
Article VI
THE NOTE GUARANTEES
Section 601. Unconditional Guarantee.
The Guarantors hereby agrees to be bound by all applicable
provisions of this Supplemental Indenture as a Guarantor and to guarantee the
Company's obligations under the Indenture and the Notes on the terms and subject
to the conditions set forth below:
(a) Each Guarantor hereby jointly and severally and fully and
unconditionally guarantees to each Holder of a Note, authenticated and delivered
by the Trustee and its successors and assigns, that: (1) the principal of, and
interest on the Notes will be duly and punctually paid in full when due, whether
at maturity, redemption or otherwise, and interest on the overdue principal and
(to the extent permitted by law) interest, if any, on the Notes and all other
obligations of the Company or the Guarantors to the Holders or the Trustee
hereunder and thereunder (including fees, expenses or other) and all other
Indenture Obligations will be promptly paid in full or performed, all in
accordance with the terms hereof; and (2) in case of any extension of time of
payment or renewal of any Notes or any of such other Indenture Obligations with
respect to the Notes, the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other Indenture Obligation of the
Company to the Holders of Notes, for whatever reason, each Guarantor will be
obligated to pay or cause the payment of, or to perform or cause the performance
of, the same immediately. An Event of Default under the Indenture or the Notes
shall constitute an event of default under this Note Guarantee, and shall
entitle the Holders of the Notes to accelerate the obligations of the Guarantor
hereunder in the same manner and to the same extent as the obligations of the
Company.
Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Indenture, the Notes or the obligations of the Company or
any other Guarantor to the Holders or the Trustee hereunder or thereunder, the
absence of any action to enforce the same, any waiver or consent by any Holder
of Notes with respect to any provisions hereof or thereof, any release of any
other Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Note Guarantee is affixed to any particular
Note, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
Each Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands
16
whatsoever and covenants that (except as otherwise provided in Section 603 of
this Supplemental Indenture) its Note Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, the Indenture
and this Note Guarantee. This Note Guarantee is a guarantee of payment and not
of collection. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders of Notes and the Trustee, on the other hand (1) subject to
this Article VI, the maturity of the obligations guaranteed hereby may be
accelerated as and to the extent provided in the Indenture for the purposes of
this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (2) in the event of any acceleration of such obligations as provided in the
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by such Guarantor for the purpose of this Note Guarantee.
Neither the Trustee nor any other Person shall have any obligation to enforce or
exhaust any rights or remedies or to take any other steps under any security for
the Indenture Obligations or against the Company or any other Person or any
property of the Company or any other Person before the Trustee is entitled to
demand payment and performance by any or all Guarantors of their liabilities and
obligations under their respective Note Guarantees or under the Indenture.
Until terminated in accordance with Section 603 of this
Supplemental Indenture, this Note Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Notes are, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on such
Notes, whether as a "voidable preference," "fraudulent transfer" or otherwise,
all as though such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Notes shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
(b) Each Guarantor that makes a payment or distribution under
this Note Guarantee shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Note Guarantee.
(c) Notwithstanding any of the foregoing, each Guarantor's
liability under this Note Guarantee shall be limited to the maximum amount that
would not result in this Note Guarantee constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
(d) Each Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by the
Indenture and that its Note Guarantee, and the waiver set forth in Section 604
of this Supplemental Indenture, is knowingly made in contemplation of such
benefits.
Section 602. Additional Note Guarantors.
17
Each Restricted Subsidiary that is required to become a Note
Guarantor pursuant to Section 503 of this Supplemental Indenture shall promptly
execute and deliver to the Trustee a supplemental indenture substantially in the
form set forth in Exhibit B to this Supplemental Indenture, evidencing its Note
Guarantee on substantially the terms set forth in this Article VI. Concurrently
therewith, the Company shall deliver to the Trustee an Opinion of Counsel in
form and substance reasonably satisfactory to the Trustee to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Restricted Subsidiary and that, subject to the applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereafter in effect affecting creditors' rights
or remedies generally and the general principles of equity, such supplemental
indenture is a valid and binding agreement of such Restricted Subsidiary,
enforceable against such Restricted Subsidiary in accordance with its terms.
Section 603. Release of a Note Guarantee.
(a) Any Guarantor shall be automatically and unconditionally
released and discharged from all of its obligations under its Note Guarantee,
and such Note Guarantee shall terminate, at any such time that such Guarantor is
released and discharged from all of its obligations under all of its Guarantees
in respect of Bank Indebtedness, unless such release results from payment under
such Guarantee. Upon the delivery by the Company to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to such release of such Note Guarantee
was made by the Company in accordance with the provisions of the Indenture and
the Notes, the Trustee shall execute any documents reasonably required in order
to evidence such release and discharge of such Guarantor from its obligations
under and termination of its Note Guarantee.
(b) Upon the sale, exchange or transfer to any Person not an
Affiliate of the Company of all of the Capital Stock held by the Company and its
Subsidiaries in, or all or substantially all the assets of, a Guarantor (which
sale, exchange or transfer is not prohibited by the Indenture), such Guarantor
shall be automatically and unconditionally released and discharged from all its
obligations under its Note Guarantee, and such Note Guarantee shall terminate.
Upon such occurrence, the Trustee shall execute any documents reasonably
required in order to evidence such release, discharge and termination in respect
of such Note Guarantee.
(c) Upon the release of any Guarantor from its Note Guarantee
pursuant to the provisions of the Indenture, each other Guarantor not so
released shall remain liable for the full amount of principal of, and premium,
if any, and interest on, the Notes as and to the extent provided in this Article
VI.
(d) Each Note Guarantee shall terminate and cease to be of
further effect upon satisfaction and discharge of the Indenture in accordance
with Section 401 of the Base Indenture.
Section 604. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of the Company's obligations
under the Notes and the Indenture or
18
such Guarantor's obligations under its Note Guarantee and the Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, indemnification, and any right to participate in any claim or
remedy of any Holder of Notes against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
until the Indenture is discharged and all of the Notes are discharged and paid
in full. If any amount shall be paid to any Guarantor in violation of the
preceding sentence and the Notes shall not have been paid in full, such amount
shall have been deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Holders of the Notes of such series,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon such Notes, whether matured or unmatured, in
accordance with the terms of the Indenture.
Section 605. Reliance on Judicial Order or Certificate of Liquidating Agent
Regarding Dissolution.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article VI, the Trustee, subject to the provisions of
Section 601 of the Base Indenture, and the Holders of Notes shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to such Holders, for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of other Indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article VI.
Section 606. Article VI Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
`Trustee' as used in this Article VI shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article VI in addition to or in place of the Trustee.
Section 607. No Suspension of Remedies.
Nothing contained in this Article VI shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of such Notes pursuant to the Indenture or to pursue any rights or
remedies hereunder or under applicable law.
Article VII
SUPPLEMENTAL INDENTURES
Section 701. Supplemental Indentures with Consent of Holders.
19
The terms of this Supplemental Indenture may be modified as
set forth in Article IX of the Base Indenture, provided that no supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby reduce the Redemption Price of any Note.
Article VIII
MISCELLANEOUS
Section 801. Sinking Funds.
Article XII of the Base Indenture shall have no application.
The Notes shall not have the benefit of a sinking fund.
Section 802. Confirmation of Indenture.
The Base Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Base Indenture, this Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
Section 803. Counterparts.
The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute
one and the same agreement.
Section 804. Governing Law.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF).
20
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the day and year first written
above.
XXXXXXX XXXXXXX, INC., as issuer
By:
-----------------------------
Name:
Title:
Attest:
-----------------------------------------
Name:
Title:
21
CITIBANK, N.A., as Trustee
By:
-----------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
22
XXXXXXX CORPORATION, as Guarantor
By:
------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
HYBRITECH INCORPORATED, as
Guarantor
By:
------------------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
23
EXHIBIT A
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION,
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
XXXXXXX XXXXXXX, INC.
o% Senior Note Due 2011
CUSIP No. o $___________ Principal Amount
No. ____
Issue Date: November ____, 2001
Xxxxxxx Xxxxxxx, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company,"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of __________ Dollars on
___________________ , and to pay interest thereon from or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on May and November in each year,
commencing May , 2002 at the rate of % per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be or (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Note will be
made at the office or agency of the Company maintained for that purpose in The
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated as of Date of Authentication:
XXXXXXX XXXXXXX, INC.
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
Attest:
------------------------------------
Name:
Title:
CITIBANK, N.A., as Trustee, certifies that this is one of the Notes referred to
in the Indenture.
Dated:
By:
----------------------------------------
Authorized Signatory
A-3
The undersigned Guarantors each hereby agree, jointly and severally with all
other Guarantors and fully and unconditionally, to guarantee the Company's
obligations under the Indenture and the Notes on the terms and subject to the
conditions set forth in Article VI of the Supplemental Indenture.
XXXXXXX CORPORATION, as Guarantor
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Attest:
-----------------------------------------
Name:
Title:
HYBRITEC INCORPORATED, as Guarantor
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Attest:
-----------------------------------------
Name:
Title:
A-4
This Note is one of a duly authorized issue of o% Senior Notes
Due 2011 of the Company (herein called the "Notes"), issued under a Senior
Indenture, dated as of April 25, 2001 (herein called the "Base Indenture"), as
supplemented by the First Supplemental Indenture, dated as of November o, 2001
(herein called the "Supplemental Indenture" and, together with the Base
Indenture, the "Indenture"), among the Company, as issuer, the Guarantors, as
guarantors, and Citibank, N.A., as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture and for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof, limited in aggregate principal amount to $ ,
subject to increase as provided in the Indenture.
This Note is entitled to the benefits of the certain senior
Note Guarantees of the Guarantors and may thereafter be entitled to certain
other senior Note Guarantees made for the benefit of the Holders. Reference is
made to Article VI of the Supplemental Indenture and to the Note Guarantees for
terms relating to such Note Guarantees.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of such Notes or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Notes being redeemed on that Redemption Date (not including any portion of any
payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semiannual basis at the Treasury Rate, as determined by the
Reference Treasury Dealer, plus basis points; plus, in each case,
accrued and unpaid interest on the Notes to the Redemption Date, all as provide
in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
The Notes will not be entitled to the benefit of a sinking
fund.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Note or certain restrictive covenants and
certain Events of Default with respect to this Note, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series
shall occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of at least a majority in principal
amount of the Notes at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the
A-5
Notes of each series at the time Outstanding, on behalf of the Holders of all
Notes of such series, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not
have received from the Holders of a majority in principal amount of Notes of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Note for the enforcement of
any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in any place where the principal of and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000.00 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
A-6
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF.)
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-7
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE IN RESPECT OF NOTE GUARANTEE
This Supplemental Indenture, dated as of __________ (this
"Supplemental Indenture"), among [name of New Guarantor] (the "New Guarantor"),
Xxxxxxx Xxxxxxx, Inc. (the "Company"), each other now existing Guarantor under,
and as defined in, the Indenture referred to below, and Citibank, N.A., as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore become
parties to a Senior Indenture, dated as of April 25, 2001 (the "Base
Indenture"), as supplemented by the First Supplemental Indenture, dated as of
November ___, 2001 (the "First Supplemental Indenture" and, together with the
Base Indenture and as amended, supplemented, waived or otherwise modified, the
"Indenture"), among the Company, as issuer, the now existing Guarantors, as
guarantors, and Citibank, N.A., as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture), providing for the
issuance of $_____________ aggregate principal amount of the Company's %
Senior Notes Due 2011 (the "Notes");
WHEREAS, Sections 503 and 602 of the First Supplemental
Indenture provide that under certain circumstances the Company is required to
cause the New Guarantor to execute and deliver to the Trustee a supplemental
indenture pursuant to which the New Guarantor shall guarantee the Company's
obligations under the Notes pursuant to a Note Guarantee on the terms and
conditions set forth herein and in Article VI of the First Supplemental
Indenture; and
WHEREAS, pursuant to Section 901 of the Base Indenture, the
parties hereto are authorized to execute and deliver this Supplemental Indenture
to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the New Guarantor, the Company, the other Guarantors and the
Trustee mutually covenant and agree for the benefit of the Holders of the Notes
as follows:
1. Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or
recital hereto are used herein as therein defined. The
words "herein," "hereof" and "hereby" and other words of
similar import used in this Supplemental Indenture refer
to this Supplemental Indenture as a whole and not to any
particular section hereof.
2. Agreement to Guarantee. The New Guarantor hereby agrees,
jointly and severally with all other Guarantors and fully
and unconditionally, to guarantee the Company's
obligations under the Indenture and the Notes on the terms
and subject to the conditions set forth in Article VI of
the Supplemental Indenture and to be bound by all other
applicable provisions of the Indenture as a Guarantor.
B-1
3. Termination, Release and Discharge. The New Guarantor's
Note Guarantee shall terminate and be of no further force
or effect, and the New Guarantor shall be released and
discharged from all obligations in respect of such Note
Guarantee, as and when provided in Section 603 of the
First Supplemental Indenture.
4. Parties. Nothing in this Supplemental Indenture is
intended or shall be construed to give any Person, other
than the Holders and the Trustee, any legal or equitable
right, remedy or claim under or in respect of the New
Guarantor's Note Guarantee or any provision contained
herein or in Article Thirteen of the Indenture.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF).
6. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall
remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all
purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound
hereby. The Trustee makes no representation or warranty as
to the validity or sufficiency of this Supplemental
Indenture.
7. Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts,
all of which together shall constitute one and the same
agreement.
8. Headings. The section headings herein are for
convenience of reference only and shall not be deemed to
alter or affect the meaning or interpretation of any
provisions hereof.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NAME OF NEW GUARANTOR],
By:
----------------------------------------
Name:
Title:
Address:
XXXXXXX XXXXXXX INC.
By:
-----------------------------------------
Name:
Title:
[Add signature block for any other
existing Guarantor]
[TRUSTEE]
By:
-----------------------------------------
Name:
Title:
B-3
