Exhibit 4.3
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MEDEX, INC.
$200,000,000
8-7/8% SENIOR SUBORDINATED NOTES DUE 2013
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INDENTURE
Dated as of May 21, 2003
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THE BANK OF NEW YORK,
as Trustee
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This INDENTURE, dated as of May 21, 2003, is entered into by and
among Medex, Inc., an Ohio corporation (the "COMPANY"), MedVest Holdings
Corporation, an Ohio corporation ("PARENT GUARANTOR"), the subsidiary guarantors
listed on the signature pages hereto, and The Bank of New York, as Trustee (the
"TRUSTEE").
The Company, the Parent Guarantor. the Subsidiary Guarantors and
the Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 8-7/8% Senior Subordinated Notes due 2013
(the "NOTES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
"144A GLOBAL NOTE" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
shall be issued in a denomination equal to the outstanding principal amount of
the Notes sold for initial resale in reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"ADDITIONAL GUARANTOR" means any Restricted Subsidiary or other
Person (other than the Parent Guarantor and any Subsidiary Guarantor listed on
the signature pages hereto) that guarantees the Notes under the terms of this
Indenture and its successor, if any.
"ADDITIONAL INTEREST" has the meaning set forth in any
Registration Rights Agreement and relating to amounts to be paid in the event
the Company fails to satisfy certain conditions set forth therein. For all
purposes of this Indenture, the term "interest" shall include Additional
Interest, if any, with respect to the Notes.
"ADDITIONAL NOTES" means any Notes (other than the Initial Notes
and Exchange Notes and any Notes issued under Sections 2.06, 2.07, 2.10 and 3.06
hereof) issued under this Indenture in accordance with Sections 2.02, 2.15 and
4.09 hereof, as part of the same series as the Initial Notes or as an additional
series.
"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.
"AGENT" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"ASSET SALE" means:
(a) the sale, lease, transfer, conveyance or other
disposition of any assets or rights, other than sales, leases,
transfers, conveyances or other dispositions of inventory or accounts
receivable in the ordinary course of business consistent with industry
practices; PROVIDED, HOWEVER, that the sale, conveyance or other
disposition of all or substantially all of the assets of the Parent
Guarantor, the Company and the Restricted Subsidiaries taken as a whole
will be governed by the provisions of the Indenture described in
Sections 4.17 and 5.01 hereof and not by the provisions described in
Section 4.12 hereof; and
(b) the sale or issuance of Equity Interests in any
Restricted Subsidiary.
Notwithstanding the preceding, the following items shall not be
deemed to be Asset Sales:
(1) any single transaction or series of related transactions
that involves assets having a fair market value of less than $1.0
million;
(2) a sale, lease, transfer, conveyance or other disposition
of assets between or among the Parent Guarantor, the Company and the
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
(4) a sale, lease, transfer, conveyance or other disposition
effected in compliance with the provisions of Section 5.01 hereof;
(5) a Restricted Payment or Permitted Investment that is
permitted by Section 4.10 hereof;
(6) the sale, lease, transfer or other conveyance of the
6.258 acre parcel of land located in Dublin, Ohio owned by the Company
on the date of the Indenture;
(7) the sale, lease, transfer or other conveyance of the
assets or outstanding Capital Stock of the Company de Costa Rica
Limitada; and
(8) any sale or disposition of obsolete inventory or worn out
assets permitted pursuant to the Indenture.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors, or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as such term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all
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securities that such "person" has the right to acquire by conversion or exercise
of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of
the corporation;
(2) with respect to a partnership, the board of directors of
the general partner of the partnership; and
(3) with respect to any other Person, the board or committee
of such Person serving a similar function.
"BOARD RESOLUTION" means a copy of a resolution certified by the
secretary or an assistant secretary (or individual performing comparable duties)
of the applicable Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
is to be made, the amount of the liability in respect of a capital lease that
would at the time be required to be capitalized on a balance sheet 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 or membership 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.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality
of the U.S. government (provided that the full faith and credit of the
United States is pledged in support of those securities) having
maturities of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any lender party to the Credit Agreement or
with any domestic commercial bank having capital and surplus in excess
of $500 million and a Thomson Bank Watch Rating of "B" or better;
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(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2) and
(3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Service
and in each case maturing within six months after the date of
acquisition; and
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the
following:
(1) prior to the first public offering of common stock of the
Parent Guarantor or the Company, the Principals and their Related
Parties cease to be the Beneficial Owner, directly or indirectly, of, in
the aggregate, a majority of the total voting power of the Voting Stock
of the Company, whether as a result of issuance of securities of the
Parent Guarantor (or any other direct or indirect parent of the Company)
or the Company, any merger, consolidation, liquidation or dissolution of
the Parent Guarantor (or any other direct or indirect parent of the
Company) or the Company or any direct or indirect transfer of securities
by the Parent Guarantor (or any other direct or indirect parent of the
Company) or the Company or otherwise;
(2) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of the
properties or assets of the Parent Guarantor or the Company and the
Restricted Subsidiaries, taken as a whole, to any "person" (as that term
is used in Section 13(d)(3) of the Exchange Act);
(3) the adoption of a plan relating to the liquidation or
dissolution of the Parent Guarantor (or any other direct or indirect
parent of the Company) or the Company;
(4) the consummation of any transaction the result of which
is that any "person" (as referenced in clause (2) above), other than the
Principals and their Related Parties, becomes the Beneficial Owner,
directly or indirectly, of, in the aggregate, more than 35% of the total
voting power of the Voting Stock of the Company, whether as a result of
issuance of securities of the Parent Guarantor (or any other direct or
indirect parent of the Company) or the Company, any merger,
consolidation, liquidation or dissolution of the Parent Guarantor (or
any other direct or indirect parent of the Company) or the Company or
any direct or indirect transfer of securities by the Parent Guarantor
(or any other direct or indirect parent of the Company) or the Company
or otherwise, PROVIDED, HOWEVER, that the Principals and their Related
Parties Beneficially Own, directly or indirectly, less than such
"person"; or
(5) the first day on which a majority of the members of the
Board of Directors of either the Parent Guarantor or the Company are not
Continuing Directors;
PROVIDED, HOWEVER for purposes of clauses (1) and (4), the Principals shall be
deemed to Beneficially Own any Voting Stock of a Person held by any other Person
(the "PARENT ENTITY") so long as the Principals Beneficially Own, directly or
indirectly, in the aggregate a majority of the voting power of the Voting Stock
of the parent entity.
"CLEARSTREAM" means Clearstream Banking S.A. and any successor
thereto.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
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"CONSOLIDATED CASH FLOW" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period PLUS:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Subsidiaries in connection
with an Asset Sale, to the extent such losses were deducted in computing
such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such
Person and the Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such
Consolidated Net Income; plus
(3) consolidated interest expense of such Person and the
Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation, amortization
of debt issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net of the
effect of all payments, if any, made or received pursuant to Hedging
Obligations), to the extent that any such expense was deducted in
computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for expenses to be paid in cash in
any future period) of such Person and the Restricted Subsidiaries for
such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net
Income; minus
(5) non-cash items increasing such Consolidated Net Income
for such period, other than the accrual of revenue in the ordinary
course of business,
in each case, on a consolidated basis and determined in
accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; PROVIDED THAT:
(1) the Net Income (but not loss) of any specified Person
that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the specified
Person or a Restricted Subsidiary;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders;
and
(3) the cumulative effect of a change in accounting
principles shall be excluded; and
(4) any non-recurring fees, charges or other expenses
(including retention bonus and non-compete payments, severance expenses,
restructuring costs and acquisition integration costs and fees) expensed
or incurred during the fiscal year in which the Notes are first issued
in connection with or related to (i) the equity investment in the Parent
Guarantor by an affiliate of the
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Principals, together with the restrained interest of members of senior
management, (ii) the acquisition of the Jelco business of Ethicon
Endo-Surgery, Inc. by the Company, (iii) the offering of the Notes
described in this Indenture and (iv) the initial borrowings under the
Credit Agreement (i) through (iv) collectively referred to as the
"Transactions."
"CONTINUING DIRECTORS" means, as of any date of determination,
any member of the Board of Directors of the Parent Guarantor or the Company who:
(1) was a member of such Board of Directors on the date of
the Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such
nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address
of the Trustee specified in Section 13.02 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 May 21, 2003 by and among the Company, the Parent Guarantor, the subsidiary
guarantors from time to time party thereto and the Lenders thereto, providing
for up to $130 million of term loan borrowings and $40 million of revolving
credit 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 or
refinanced (in whole or in part) from time to time, whether or not with the same
lenders or agent.
"CREDIT FACILITIES" means one or more debt facilities or
agreements (including, without limitation, the Credit Agreement) or commercial
paper facilities, in each case with banks or other institutional lenders or
investors providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced, or refinanced (including any agreement to extend
the maturity thereof and adding additional borrowers or guarantors) in whole or
in part from time to time under the same or any other agent, lender or group of
lenders and including increasing the amount of available borrowings thereunder;
PROVIDED, that such increase is permitted pursuant to Section 4.09 hereof.
"CUSTODIAN" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03(c)
hereof as Custodian with respect to the Notes, and any and all successors
thereto appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"DEFAULT" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 or 2.10
hereof, in substantially the form of Exhibit A hereto, except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03(b)
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.
"DEFERRED MANAGEMENT FEES" means, for any period, any Management
Fees that were payable during any prior period, the payment of which was not
effected when due.
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"DESIGNATED SENIOR DEBT" means (i) any Indebtedness outstanding
under the Credit Agreement and (ii) after payment in full in cash of all
Obligations under the Credit Agreement, any other Senior Debt permitted
hereunder the principal amount of which is $25.0 million or more and that has
been designated by the Company as "Designated Senior Debt."
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible, or for which it
is exchangeable, in each case at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a Change of
Control or an asset sale shall not constitute Disqualified Stock if the terms of
such Capital Stock are no more favorable to the holders of such Capital Stock
than the provisions contained in the provisions of Sections 4.12 and 4.17 hereof
and such Capital Stock provides that the Company may not repurchase or redeem
any such Capital Stock pursuant to such provisions prior to the Company's
repurchase of the Notes as required by such covenants.
"DISTRIBUTION COMPLIANCE PERIOD" means the 40-day distribution
compliance period as defined in Regulation S.
"EQUITY INTERESTS" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means any private or public sale of common
stock of the Company, or the Parent Guarantor, to the extent the proceeds of
which are contributed to the Company.
"EUROCLEAR" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system, and any successor thereto.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, including any successor
legislation and rules and regulations.
"EXCHANGE NOTES" means Notes registered under the Securities Act
to be exchanged for Notes not so registered, pursuant to and as set forth in a
Registration Rights Agreement relating to such an exchange.
"EXCHANGE OFFER" has the meaning set forth in a Registration
Rights Agreement relating to an exchange of Notes registered under the
Securities Act for Notes not so registered.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in a Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means all Indebtedness of the Parent
Guarantor and its Subsidiaries (other than Indebtedness under the Credit
Agreement) in existence on the date of the Indenture, until such amounts are
repaid.
"FIXED CHARGES" means, with respect to any specified Person for
any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus
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(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person
that is guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such guarantee or Lien is called upon; plus
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of the Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Parent
Guarantor (other than Disqualified Stock) or to the Parent Guarantor or
a Restricted Subsidiary, times (b) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as
a decimal, in each case, on a consolidated basis and in accordance with
GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of such
Person and its Restricted Subsidiaries for such period to the Fixed Charges of
such Person and its Restricted Subsidiaries for such period. In the event that
the specified Person or any of its Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the
"CALCULATION DATE"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions that have been made by the specified Person
or any of the Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during
the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date shall be given pro forma effect
(calculated in accordance with Regulation S-X) as if they had occurred
on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded;
and
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall be excluded,
but only to the extent that the obligations giving rise to such Fixed
Charges shall not be obligations of the specified Person or any of the
Restricted Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, as in effect from time to time; PROVIDED, HOWEVER,
that any change in GAAP that would cause the Company or a Restricted Subsidiary
to record an existing item as a liability upon that entity's balance sheet,
which item was not previously required by GAAP to be so recorded, shall not
constitute an incurrence of Indebtedness for purposes hereof.
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"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
"GLOBAL NOTES" means the global Notes in the form of Exhibit A
hereto issued in accordance with Article 2 hereof.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
obligations or guarantee the full faith and credit of the United States of
America is pledged.
"GUARANTEE" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"GUARANTOR" means any of the Parent Guarantor, the Subsidiary
Guarantors and the Additional Guarantors, if any.
"HEDGING OBLIGATIONS" means, with respect to any specified
Person, the obligations of such Person under:
(1) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements;
(2) forward foreign exchange contracts or currency swap
agreements;
(3) commodity price protection agreements or commodity price
hedging agreements designed to manage fluctuations in prices or costs in
energy, raw materials, manufactured products or related commodities; and
(4) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, commodity prices or
currency values.
"INCUR" means to directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise.
"HOLDER" means a Person in whose name a Note is registered.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes
an accrued expense or trade payable; or
(6) representing any Hedging Obligations,
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if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person); PROVIDED, HOWEVER, that, for purposes of determining the
amount of any Indebtedness of the type described in this clause, if recourse
with respect to such Indebtedness is limited to such asset, the amount of such
Indebtedness shall be limited to the lesser of the fair market value of such
asset or the amount of such Indebtedness; and, to the extent not otherwise
included, the Guarantee by the specified Person of any Indebtedness of any other
Person.
The amount of any Indebtedness outstanding as of any date shall
be:
(i) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount; and
(ii) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due, in
the case of any other Indebtedness.
"INDENTURE" means this instrument, as originally executed or as
it may from time to time be supplemented or amended in accordance with Article 9
hereof.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL NOTES" means $200.0 million aggregate principal amount
of Notes issued under this Indenture on the date hereof.
"INTEREST PAYMENT DATES" shall have the meaning set forth in
paragraph 1 of each Note.
"INVESTMENTS" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including guarantees or other obligations), advances or
capital contributions (excluding commission, travel, similar advances, fees and
compensation paid to officers, directors and employees in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Company, such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary of the Company, shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of in an
amount determined as provided in Section 4.10(c) hereof. The acquisition by the
Company or any Subsidiary of the Company of a Person that holds an Investment in
a third Person shall be deemed to be an Investment by the Company or such
Subsidiary in such third Person in an amount equal to the fair market value of
the Investment held by the acquired Person in such third Person in an amount
determined as provided in Section 4.10(c) hereof.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in each of The City of New York, New York, the City of
Dublin, Ohio, the city in which the Corporate Trust Division (or successor
group) of the Trustee is located or any other place of payment on the Notes are
authorized by law, regulation or executive order to remain closed.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
10
"LETTER OF TRANSMITTAL" means the letter of transmittal, or its
electronic equivalent in accordance with the Applicable Procedures, to be
prepared by the Company and sent to all Holders of the Initial Notes or any
Additional Notes for use by such Holders in connection with an Exchange Offer.
"MANAGEMENT FEES" means any amounts payable by the Company or
any Restricted Subsidiary in respect of management or similar services.
"NET INCOME" means, with respect to any specified Person, the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (or loss), together with any related provision
for taxes on such gain (or loss), realized in connection with: (a) any
Asset Sale or any disposition pursuant to a sale and leaseback
transaction; (b) the disposition of any securities by such Person or any
of its Restricted Subsidiaries or (c) the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain (or loss), together with any
related provision for taxes on such extraordinary gain (or loss).
"NET PROCEEDS" means the aggregate cash proceeds (excluding any
proceeds deemed to be "cash" pursuant to the provisions of Section 4.12 hereof
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of (1) the direct costs relating to such Asset Sale, including, without
limitation, legal, accounting and investment banking fees, and sales
commissions, and any relocation expenses incurred as a result of the Asset Sale,
(2) taxes paid or payable as a result of the Asset Sale, in each case, after
taking into account any available tax credits or deductions and any tax sharing
arrangements, (3) amounts required to be applied to the repayment of
Indebtedness, other than Senior Debt, secured by a Lien on the asset or assets
that were the subject of such Asset Sale, (4) all payments made with respect to
liabilities directly associated with the assets that were the subject of the
Asset Sale, and (5) any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"NOTE GUARANTEE" means the guarantee of the Notes by each of the
Guarantors.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages, costs and expenses and other
liabilities payable under the documentation governing any Indebtedness.
"OFFICER" means the Chief Executive Officer, the President, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary
or any Vice President of the Company or a Guarantor, as applicable.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers of the Company, at least one of whom shall be the principal executive
officer, principal financial officer or the principal accounting officer of the
Company or a Guarantor, as applicable, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company, an Affiliate of the Company or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to DTC, shall include Euroclear and
Clearstream.
"PERMITTED BUSINESS" means a medical products and devices
business and such business activities as are reasonably related, incidental,
complementary or ancillary thereto.
11
"PERMITTED INVESTMENTS" means:
(1) any Investments in the Company or in a Restricted
Subsidiary;
(2) any Investments in Cash Equivalents;
(3) any Investment by the Company or any Restricted
Subsidiary in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to, or
is liquidated into, the Company or a Restricted Subsidiary;
(4) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and
in compliance with the provisions of Section 4.12 hereof;
(5) any acquisition of assets in exchange for, or out of the
net cash proceeds of the substantially concurrent sale (other than to a
Restricted Subsidiary) of, Equity Interests of the Company (other than
Disqualified Stock); PROVIDED, HOWEVER, that the amount of any such net
cash proceeds that are utilized for any such redemption, repurchase,
retirement, defeasance or other acquisition shall be excluded from
Restricted Payments as described in Section 4.10 (and shall not
previously have been relied on to make a Restricted Payment);
(6) any Investments received in compromise of obligations of
such persons incurred in the ordinary course of trade creditors or
customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of any trade creditor or customer;
(7) Hedging Obligations;
(8) any Investment received by the Company or any Restricted
Subsidiary as consideration for the settlement of any litigation,
arbitration or claim in bankruptcy or in partial or full satisfaction of
accounts receivable owed by a financially troubled Person to the extent
reasonably necessary in order to prevent or limit any loss by the
Company or any of its Restricted Subsidiaries in connection with such
accounts receivable;
(9) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated
as expenses for accounting purposes and that are made in the ordinary
course of business;
(10) any Investment in receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of
business consistent with industry practices and payable or dischargeable
in accordance with customary trade terms; PROVIDED, HOWEVER, that such
trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances;
and
(11) other Investments having an aggregate fair market value
(measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (11) that are at the time
outstanding, not to exceed $10.0 million.
12
"PERMITTED JUNIOR SECURITIES" means:
(1) Equity Interest in the Company or any Guarantor; or
(2) debt securities that are subordinated to all Senior Debt
and any debt securities issued in exchange for Senior Debt to the same
extent as, or to a greater extent than, the Notes and the note
guarantees are subordinated to Senior Debt under the Indenture.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of
the Company any of the Restricted Subsidiaries issued in exchange for, or the
Net Proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of the Restricted Subsidiaries
(other than intercompany Indebtedness); PROVIDED, HOWEVER, that:
(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date the same as or later than the final maturity date of, and
has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(3) if Subordinated Obligations are being extended,
refinanced, renewed, replaced, defeased or refunded, such Permitted
Refinancing Indebtedness has a final maturity date the same as or later
than the final maturity date of, and is subordinated in right of payment
to, the Notes on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Subordinated
Obligations being extended, refinanced, renewed, replaced, defeased or
refunded; and
(4) such Indebtedness is incurred either by the Company, a
Guarantor or by the Subsidiary that is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PREDECESSOR NOTE" of any particular Note means every previous
Note evidencing all or a portion of the same Indebtedness as that evidenced by
such particular Note; and any Note authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same Indebtedness as the lost, destroyed or stolen Note.
"PRINCIPALS" means One Equity Partners LLC, a Delaware limited
liability company.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except
as otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"REGISTRATION RIGHTS AGREEMENT" means the Exchange and
Registration Rights Agreement, dated as of the date of the Indenture, among the
Company, the Parent Guarantor, the Subsidiary Guarantors and the initial
purchasers named therein, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements between the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to
13
rights given by the Company to the purchasers of Additional Notes to register
such Additional Notes, or exchange such Additional Notes for registered Notes,
under the Securities Act.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date means the applicable date specified as a "Record Date" on the face
of the Note.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent Global
Note in the form of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary Global
Note in the form of Exhibit A-2 hereto bearing the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes initially sold in reliance on Rule 903 of Regulation S.
"RELATED PARTY" means:
(1) any controlling equityholder, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an individual) of
any Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any one
or more Principals and/or such other Persons referred to in the
immediately preceding clause (1).
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer within the Corporate Trust Division, Corporate Finance Unit of
the Trustee (or any successor group of the Trustee) located at the Corporate
Trust Office of the Trustee who has direct responsibility for the administration
of this Indenture and for purposes of Section 7.01(c)(2) and the second sentence
of Section 7.05 also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
bearing the Private Placement Legend.
"RESTRICTED GLOBAL NOTES" means 144A Global Notes and Regulation
S Global Notes.
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that
is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
14
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations thereunder, including any successor
legislation and rules and regulations.
"SENIOR DEBT" means:
(1) all Indebtedness of the Company or any Guarantor
outstanding under Credit Facilities (including the Credit Agreement) and
all Hedging Obligations with respect thereto;
(2) any other Indebtedness of the Company or any Guarantor
permitted to be incurred under the terms of the 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 guarantee; and
(3) all Obligations with respect to the items listed in the
preceding clauses (1) and (2), including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating
to the Company to the extent post-filing interest is allowed in such
proceeding.
Notwithstanding anything to the contrary in the preceding
sentence, Senior Debt shall not include:
(1) any liability for federal, state, local or other taxes
owed or owing by, the Company or any Restricted Subsidiary;
(2) any Indebtedness of the Company to the Parent Guarantor
or any of its Subsidiaries or other Affiliates;
(3) any trade payables;
(4) any Indebtedness of the Company or any Restricted
Subsidiary that is by its terms subordinate or pari passu in right of
payment to the Notes;
(5) the portion of any Indebtedness that is incurred in
violation of the Indenture; or
(6) any obligations with respect to any Capital Stock of the
Parent Guarantor, the Company or any Restricted Subsidiary.
"SENIOR SUBORDINATED INDEBTEDNESS" means (i) with respect to the
Company, the Notes and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to have the same rank as the Notes in right
of payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Company which is not Senior Debt and
(ii) with respect to any Guarantor, the note guarantees and any other
Indebtedness of such Guarantor that specifically provides that such Indebtedness
is to have the same rank as the note guarantees in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of such Guarantor which is not Senior Debt.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in any
Registration Rights Agreement relating to registering Notes under the Securities
Act.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"STATED MATURITY" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
15
documentation governing such Indebtedness (or any later date established in any
amendment to such documentation), and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"SUBORDINATED OBLIGATION" means any Indebtedness of the Company
(whether outstanding on the date of the Indenture or thereafter incurred) that
is subordinate or junior in right of payment to the Notes pursuant to a written
agreement to that effect.
"SUBSIDIARY" means, with respect to any specified Person:
(1) 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) 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
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are that Person or one
or more Subsidiaries of that Person (or any combination thereof).
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Company that
executes the Indenture as a Guarantor and each other Subsidiary of the Company
that thereafter guarantees the Notes pursuant to the terms of the Indenture.
"TIA" means the U.S. Trust Indenture Act of 1939, as amended,
and the rules and regulations thereunder, including any successor legislation
and rules and regulations.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"UNRESTRICTED DEFINITIVE NOTES" means one or more Definitive
Notes that do not and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTES" means one or more Global Notes that
do not and are not required to bear the Private Placement Legend and are
deposited with or on behalf of and registered in the name of the Depositary or
its nominee.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the
Company (or any successor to any of them) that is designated as an Unrestricted
Subsidiary pursuant to a Board Resolution as set forth under Section 4.16 hereof
and (b) any Subsidiary of an Unrestricted Subsidiary.
"VOTING STOCK" of any 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.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final
maturity, in respect of the Indebtedness, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such
date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
16
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---------------------------------------------------------------------------
"ACCELERATION NOTICE"..................................... 6.02
"AFFILIATE TRANSACTION"................................... 4.14
"ASSET SALE OFFER"........................................ 4.12(c)
"AUTHENTICATION ORDER".................................... 2.02(d)
"BENEFITED PARTY"......................................... 10.01
"CHANGE OF CONTROL OFFER"................................. 4.17(a)
"CHANGE OF CONTROL AMOUNT"................................ 4.17(a)
"COMPANY"................................................. PREAMBLE
"COVENANT DEFEASANCE"..................................... 8.03
"DTC"..................................................... 2.03(b)
"EVENT OF DEFAULT"........................................ 6.01
"EXCESS PROCEEDS"......................................... 4.12(b)
"LEGAL DEFEASANCE"........................................ 8.02
"LOSSES".................................................. 7.07
"NOTES"................................................... PREAMBLE
"OFFER AMOUNT"............................................ 3.09(b)(ii)
"OFFER PERIOD"............................................ 3.09(c)
"OFFER TO PURCHASE"....................................... 3.09(a)
"PARENT GUARANTOR"........................................ PREAMBLE
"PAYING AGENT"............................................ 2.03(a)
"PAYMENT BLOCKAGE NOTICE"................................. 11.03(a)
"PAYMENT DEFAULT"......................................... 6.01
"PERMITTED DEBT".......................................... 4.09(b)
"PURCHASE DATE"........................................... 3.09(c)
"REGISTRAR"............................................... 2.03(a)
"REPRESENTATIVE".......................................... 11.03(a)
"RESTRICTED PAYMENTS"..................................... 4.10(a)
"SECURITY REGISTER"....................................... 2.03
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
(b) The following TIA term used in this Indenture has the
following meaning:
"OBLIGOR" on the Notes means the Company and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA and not otherwise defined herein have the meanings so
assigned to them either in the TIA, by another statute or Commission rule, as
applicable.
SECTION 1.04. RULES OF CONSTRUCTION.
(a) Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined herein
has the meaning assigned to it in accordance with GAAP;
17
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in
the plural include the singular;
(v) all references in this instrument to "Articles,"
"Sections" and other subdivisions are to the designated Articles,
Sections and subdivisions of this instrument as originally executed;
(vi) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision;
(vii) "including" means "including without limitation;"
(viii) provisions apply to successive events and
transactions; and
(ix) references to sections of or rules under the
Securities Act, the Exchange Act or the TIA shall be deemed to include
substitute, replacement or successor sections or rules adopted by the
Commission from time to time thereunder.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form included in Exhibits A-1 and
A-2 hereto, which is hereby incorporated in and expressly made part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, exchange rule or usage in addition to those set forth on Exhibits A-1 and
A-2. Each Note shall be dated the date of its authentication. The Notes shall be
in denominations of $1,000 and integral multiples thereof. The terms and
provisions contained in the Notes shall constitute a part of this Indenture, and
the Company, Parent Guarantor, the Subsidiary Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. To the extent any provision of any Note
conflicts with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.
(b) FORM OF NOTES. Notes shall be issued initially in global
form and shall be substantially in the form of Exhibits A-1 and A-2 attached
hereto (including the Global Note Legend thereon and the "Schedule of Exchanges
of Interests in the Global Note" attached thereto). Notes issued in definitive
form shall be substantially in the form of Exhibit A attached hereto (but
without the Global Note Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Each Global Note shall
represent such aggregate principal amount of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions and transfers of interests therein. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) BOOK-ENTRY PROVISIONS. This Section 2.01(c) shall apply
to all Global Notes. Participants and Indirect Participants shall have no rights
under this Indenture or any Global Note with respect to any Global Note held on
their behalf by the Depositary or by the Trustee as custodian for the
Depositary, and the Depositary shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company 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
18
Participants or Indirect Participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
(d) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
(a) One Officer shall execute the Notes on behalf of the
Company by manual or facsimile signature.
(b) If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated by the Trustee, the Note
shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Note shall be substantially as
set forth in Exhibits A-1 and A-2 hereto.
(d) The Trustee shall, upon a written order of the Company
signed by an Officer requesting the authentication and delivery of Notes (an
"AUTHENTICATION ORDER"), authenticate Notes for original issue and deliver them
in accordance with such Authentication Order.
(e) The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. Unless otherwise provided in
such appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall
have the same rights as an Agent with respect to Holders.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
(a) The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange
("REGISTRAR") and an office or agency where Notes may be presented for payment
("PAYING AGENT"). The Registrar shall keep a register (the "Security Register")
of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents; provided, however,
that there shall be only one Security Register. The term "Registrar" includes
any co-registrar and the term "Paying Agent" includes any additional paying
agent. The Company may enter into an appropriate agency agreement with any Agent
not party to this Indenture, which may incorporate the provisions of the TIA.
Such agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with Section 7.07 hereof. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as
Registrar and Paying Agent, agent for service of notices and demands to or upon
the Company in respect of the Notes and this Indenture, as provided in Section
4.02, in connection with the Global Note and to act as Custodian with respect to
the Global Notes, and the Trustee hereby agrees so to initially act.
19
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Persons entitled thereto all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes, and shall
notify the Trustee of any Default by the Company in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to pay
all funds held by it relating to the Notes to the Trustee. The Company at any
time may require a Paying Agent to pay all funds held by it relating to the
Notes to the Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company, Parent Guarantor or a Subsidiary) shall have no further
liability for such funds. If the Company, Parent Guarantor or a Subsidiary acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all funds held by it as Paying Agent. Upon any Event of
Default under Sections 6.01(ix) and (x) hereof relating to the Company or the
Parent Guarantor, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish or cause to be furnished to the
Trustee at least seven Business Days before each Interest Payment Date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date or such shorter time as the Trustee may allow, as the Trustee
may reasonably require of the names and addresses of the Holders and the Company
shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred except as a whole by (1) the Depositary to a nominee of the
Depositary, (2) a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or (3) the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. The Company
shall exchange Global Notes for Definitive Notes if: (1) the Company delivers to
the Trustee a notice from the Depositary that the Depositary is unwilling or
unable to continue to act as Depositary for the Global Notes or that it has
ceased to be a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 120 days
after the date of such notice from the Depositary; (2) the Company at its option
determines that the Global Notes shall be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee; provided, however, that
in no event shall the Regulation S Temporary Global Note be exchanged by the
Company for Definitive Notes prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act; or (3) a
Default or Event of Default shall have occurred and be continuing. Upon the
occurrence of any of the preceding events in clauses (1), (2) or (3) above,
Definitive Notes shall be issued in denominations of $1,000 or integral
multiples thereof and in such names as the Depositary shall instruct the Trustee
in writing. Global Notes also may be exchanged or replaced, in whole or in part,
as provided in Sections 2.07 and 2.10 hereof. Except as provided above, every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), and beneficial interests in a Global Note may
not be transferred and exchanged other than as provided in Section 2.06(b), (c)
or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary in accordance with the provisions
of this Indenture and the Applicable Procedures. Beneficial interests in
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in Global Notes also shall require compliance
with either clause (i) or (ii) below, as applicable, as well as one or more of
the other following clauses, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME
GLOBAL NOTE. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth
20
in the Private Placement Legend and any Applicable Procedures; PROVIDED,
HOWEVER, that prior to the expiration of the Distribution Compliance
Period, transfers of beneficial interests in the Temporary Regulation S
Global Note may not be made to or for the account or benefit of a "U.S.
Person" (as defined in Rule 902(k) of Regulation S) (other than a
"distributor" (as defined in Rule 902(d) of Regulation S)). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL NOTES. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) if permitted under Section 2.06(a)
hereof, (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (B)(1) above, provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests in
the Regulation S Temporary Global Note prior to (x) the expiration of
the Distribution Compliance Period; (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903 under the Securities Act
and (z) the receipt by the Trustee of written certification that such
transfer is in accordance with the restrictions set forth on the legend.
Upon consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by the
Holder of the Restricted Global Notes, which, in the case of Global
Notes, may be accomplished by the Depository through the Applicable
Procedures. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust or cause to be adjusted the principal
amount of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL NOTE TO ANOTHER RESTRICTED GLOBAL NOTE. A beneficial interest in
any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of
Section 2.06(b)(ii) above and the Registrar receives the following:
(A) if the transferee shall take delivery in the
form of a beneficial interest in a 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof or, if
permitted by Applicable Procedures, item (3) thereof; and
(B) if the transferee shall take delivery in the
form of a beneficial interest in a Regulation S Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note only if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
21
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with a Registration
Rights Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, makes any and all certifications in the
applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange
such beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer
such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer shall
be effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to clause (A), (B) or (D)
above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to clause (A), (B) or (D) above.
(v) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES FOR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL
NOTES PROHIBITED. Beneficial interests in an Unrestricted Global Note
may not be exchanged for, or transferred to Persons who take delivery
thereof in the form of, beneficial interests in a Restricted Global
Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. Subject to Section 2.06(a) hereof, if any
holder of a beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
22
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being
transferred to a "non-U.S. Person" (as defined in Rule 902(k) of
Regulation S) in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being
transferred to the Company, Parent Guarantor or any of their
Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item 3(c)
thereof,
the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.06(h) hereof the aggregate principal amount
of the applicable Restricted Global Note, and the Company shall execute
and, upon receipt of an Authentication Order, the Trustee shall
authenticate and deliver a Restricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the
Depositary and the applicable Participant or Indirect Participant on
behalf of such holder. Any Restricted Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee
shall deliver such Restricted Definitive Notes to the Persons in whose
names such Notes are so registered. Any Restricted Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained
therein.
(ii) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTES. Notwithstanding Sections
2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S
Temporary Global Note may not be exchanged for a Restricted Definitive
Note or transferred to a Person who takes delivery thereof in the form
of a Restricted Definitive Note prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the Registrar of
any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other
than Rule 903 or Rule 904.
(iii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. Subject to Section 2.06(a) hereof, a
holder of a beneficial interest in a Restricted Global Note may exchange
such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with a Registration
Rights Agreement and the holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, makes any and all certifications in the applicable
Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights
Agreement;
23
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange
such beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer
such beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer shall
be effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of
this Section 2.06(c)(iii) the Company shall execute, and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the
Trustee shall authenticate and deliver an Unrestricted Definitive Note
in the appropriate principal amount to the Person designated by the
holder of such beneficial interest in instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder, and the Trustee shall reduce or
cause to be reduced in a corresponding amount pursuant to Section
2.06(h) hereof the aggregate principal amount of the applicable
Restricted Global Note.
(iv) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES
TO UNRESTRICTED DEFINITIVE NOTES. Subject to Section 2.06(a) hereof, if
any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for an Unrestricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note,
then, upon satisfaction of the applicable conditions set forth in
Section 2.06(b)(ii) hereof, the Trustee shall reduce or cause to be
reduced in a corresponding amount pursuant to Section 2.06(h) hereof the
aggregate principal amount of the applicable Unrestricted Global Note,
and the Company shall execute and, upon receipt of an Authentication
Order, the Trustee shall authenticate and deliver an Unrestricted
Definitive Note in the appropriate principal amount to the Person
designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable
Participant or Indirect Participant on behalf of such holder. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall designate in such
instructions. The Trustee shall deliver such Unrestricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall not bear the Private
Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note or to transfer such Restricted Definitive
Notes to a Person who takes delivery
24
thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in
a Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a "non-U.S. Person" (as defined in Rule 902(k) of
Regulation S) in an offshore transaction in accordance with Rule
903 or Rule 904, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to the Company, Parent Guarantor, or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof, or
(F) if such Restrictive Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certification in item 3(c)
thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased in a corresponding amount pursuant to Section
2.06(h) hereof the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, a 144A Global Note, and in the case of clause (C) above, a
Regulation S Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to
a Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with a Registration
Rights Agreement and the holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, makes such certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a broker-dealer
pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in an Unrestricted Global Note, a
certificate
25
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted
Definitive Note proposes to transfer such Note to a
Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer shall
be effected in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend shall no longer be required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in
this Section 2.06(d)(ii), the Trustee shall cancel such Restricted
Definitive Note and increase or cause to be increased in a corresponding
amount pursuant to Section 2.06(h) hereof the aggregate principal amount
of the Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(h) hereof
the aggregate principal amount of one of the Unrestricted Global Notes.
(iv) TRANSFER OR EXCHANGE OF UNRESTRICTED DEFINITIVE
NOTES TO BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES PROHIBITED. An
Unrestricted Definitive Note may not be exchanged for, or transferred to
Persons who take delivery thereof in the form of, beneficial interests
in a Restricted Global Note.
(v) ISSUANCE OF UNRESTRICTED GLOBAL NOTES. If any such
exchange or transfer of a Definitive Note for a beneficial interest in
an Unrestricted Global Note is effected pursuant to clause (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED
DEFINITIVE NOTES. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to
Rule 144A, a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer shall be made pursuant to
Rule 903 or Rule 904, a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
26
(C) if the transfer shall be made pursuant to
any other exemption from the registration requirements of the
Securities Act, a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with a Registration
Rights Agreement and the holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, makes such certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be
required by such Registration Rights Agreement;
(B) any such transfer is effected pursuant to a
Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) any such transfer is effected by a
broker-dealer pursuant to an Exchange Offer Registration
Statement in accordance with a Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer shall be effected in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend shall no longer be required in
order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of
Section 2.06(e)(ii) the Trustee shall cancel the prior
Restricted Definitive Note and the Company shall execute, and,
upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate and deliver
an Unrestricted Definitive Note in the appropriate principal
amount to the Person designated by the Holder of such prior
Restricted Definitive Note in instructions delivered to the
Registrar by such Holder.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A Holder of an Unrestricted Definitive Note may
transfer such Note to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Note pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of an Exchange Offer
in accordance with a Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the applicable Restricted Global Notes (A) tendered for acceptance
by Persons that make any and all certifications in the applicable Letters of
Transmittal
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(or are deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights Agreement,
and (B) accepted for exchange in the Exchange Offer and (ii) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who made
the foregoing certification and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall reduce or cause
to be reduced in a corresponding amount the aggregate principal amount of the
applicable Restricted Global Notes, and the Company shall execute and the
Trustee shall authenticate and deliver (1) to or on behalf of the Depository,
such Unrestricted Global Note or Notes in the appropriate principal amount and
(2) to the Persons designated by the Holders of Restricted Definitive Notes so
accepted, Unrestricted Definitive Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by clause (B) below,
each Global Note and each Definitive Note (and all Notes issued
in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES
LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN
"OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT
OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED
STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING
CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
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THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to clauses (b)(iv),
(c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
of this Section 2.06 (and all Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(iii) REGULATIONS S TEMPORARY GLOBAL NOTE LEGEND. The
Regulation S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or cancelled in whole and not in part, each such Global Note shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Custodian or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who shall take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an
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endorsement shall be made on such Global Note by the Trustee or by the Custodian
or by the Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.12, 4.17 and 9.05
hereof).
(ii) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the same
Indebtedness, as the Global Notes or Definitive Notes surrendered upon
such registration of transfer or exchange and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
(iii) Neither the Registrar nor the Company shall be
required (A) to issue, to register the transfer of or to exchange any
Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section
3.02 hereof and ending at the close of business on the date of selection
or (B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes, in
each case regardless of any notice to the contrary.
(v) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
(vi) The Trustee is hereby authorized and directed to
enter into a letter of representations with the Depositary in the form
provided by the Company and to act in accordance with such letter.
(vii) Subject to the applicable provisions of this
Section 2.06, to permit registrations of transfers and exchanges, the
Company shall execute, and the Trustee shall authenticate, Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(viii) The Trustee shall authenticate Global Notes and
Definitive Notes for original issue in accordance with the provisions of
Section 2.02 hereof.
(ix) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among Participants, Indirect Participants and/or
holders or owners of beneficial interests in any Global Note), other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
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upon receipt of an Authentication Order, shall authenticate a replacement Note.
If required by the Trustee or the Company, the Holder of such Note shall provide
security or indemnity sufficient, in the judgment of the Trustee or the Company,
as applicable, to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer in connection
with such replacement. If required by the Company, such Holder shall reimburse
the Company for its reasonable expenses in connection with such replacement.
Every replacement Note issued in accordance with this Section
2.07 shall be the valid obligation of the Company evidencing the same
Indebtedness as the destroyed, lost or stolen Note and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other
Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
(a) The Notes outstanding at any time shall be the entire
principal amount of Notes represented by all the Global Notes and Definitive
Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those subject to reductions in beneficial
interests effected by the Trustee in accordance with Section 2.06 hereof, and
those described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note shall not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note; PROVIDED, HOWEVER, that
Notes held by the Company or a Subsidiary of the Company shall be deemed not to
be outstanding for purposes of Section 3.07(a) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof, it
shall cease to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Note is held by a bona fide purchaser.
(c) If the principal amount of any Note is considered paid
under Section 4.01 hereof, it shall cease to be outstanding and interest on it
shall cease to accrue.
(d) If the Paying Agent (other than the Company, Parent
Guarantor, a Subsidiary or an Affiliate of any thereof) holds, on a redemption
date, a Purchase Date or maturity date, funds sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any notice, direction, waiver or consent,
Notes owned by the Company, any Guarantor or by any other obligor upon the Notes
or by any Affiliate of the Company, any Guarantor or any such obligor, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Notes that a Responsible Officer of
the Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Definitive Notes but may
have variations that the Company considers appropriate for temporary Notes and
as shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate Global Notes or
Definitive Notes in exchange for temporary Notes, as applicable.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly
issued hereunder.
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SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
Upon sole direction of the Company, the Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall dispose of cancelled Notes (subject to the record
retention requirements of the Exchange Act or other applicable laws) in
accordance with its then customary procedures unless the Company directs them to
be returned to them. Certification of the disposition of all cancelled Notes
shall be delivered to the Company from time to time upon request unless by a
written order, signed by an Officer of the Company, the Company shall direct
that cancelled Notes be returned to them. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, PROVIDED that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.13. CUSIP OR ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" and/or "ISIN"
numbers and Notices of an Offer to Purchase and may use such numbers on other
notices to Holders provided for herein (if then generally in use), and, if so,
the Trustee shall use "CUSIP" and/or "ISIN" numbers in notices of redemption as
a convenience to Holders; PROVIDED, HOWEVER, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption, any notice
of an Offer to Purchase or such other notice and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such
redemption or Offer to Purchase shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the "CUSIP" and/or "ISIN" numbers.
SECTION 2.14. ADDITIONAL INTEREST.
If Additional Interest is payable by the Company pursuant to a
Registration Rights Agreement and paragraph 1 of the Notes, the Company shall
deliver to the Trustee a certificate to that effect stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such
interest is payable pursuant to Section 4.01 hereof. Unless and until a
Responsible Officer of the Trustee receives such a certificate or instruction or
direction from the Holders in accordance with the terms of this Indenture, the
Trustee may assume without inquiry that no Additional Interest is payable. The
foregoing shall not prejudice the rights of the Holders with respect to their
entitlement to Additional Interest as otherwise set forth in this Indenture or
the Notes and pursuing any action against the Company directly or otherwise
directing the Trustee to take any such action in accordance with the terms of
this Indenture and the Notes. If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the Trustee
an Officers' Certificate setting forth the details of such payment.
SECTION 2.15. ISSUANCE OF ADDITIONAL NOTES.
The Company shall be entitled, subject to its compliance with
Section 4.09 hereof, to issue Additional Notes under this Indenture which shall
have identical terms as the Initial Notes issued on the date hereof, other than
with respect to the date of issuance, issue price and rights under a related
Registration Rights Agreement,
32
if any. The Initial Notes issued on the date hereof, any Additional Notes and
all Exchange Notes issued in exchange therefor shall be treated as a single
class for all purposes under this Indenture, including without limitation,
waivers, amendments, redemptions and Offers to Purchase.
With respect to any Additional Notes, the Company shall set
forth in a Board Resolution and an Officers' Certificate, a copy of each of
which shall be delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional Notes
to be authenticated and delivered pursuant to this Indenture;
(b) the issue price, the issue date and the CUSIP and/or ISIN
number of such Additional Notes; PROVIDED, HOWEVER, that no Additional Notes may
be issued at a price that would cause such Additional Notes to have "original
issue discount" within the meaning of Section 1273 of the Code and such
Officers' Certificate shall state in effect that such Additional Notes are not
being issued at such a price; and
(c) whether such Additional Notes shall be subject to the
restrictions on transfer set forth in Section 2.06 hereof relating to Restricted
Global Notes and Restricted Definitive Notes.
SECTION 2.16. RECORD DATE.
The record date for purposes of determining the identity of
Holders of Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 90 days before a redemption date (or such
shorter period as allowed by the Trustee), an Officers' Certificate setting
forth (i) the applicable section of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the principal amount of
Notes to be redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a PRO RATA basis, by lot or in accordance with any other method the
Trustee deems fair and appropriate (and in compliance with applicable legal
requirements). However, no Notes of a principal amount of $1,000 or less shall
be redeemed in part. In the event of partial redemption by lot, the particular
Notes to be redeemed shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption date by the Trustee
from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples of $1,000,
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
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SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days prior to a redemption
date, the Company shall mail or cause to be mailed, by first class mail, a
notice of redemption to each Holder whose Notes are to be redeemed at such
Holder's address appearing in the Security Register.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the appropriate calculation of the redemption price, but
need not include the redemption price itself. The actual redemption price,
calculated as described above, shall be set forth in an Officers' Certificate
delivered to the Trustee no later than two (2) Business Days prior to the
redemption date unless clause (b) of the definition of "Comparable Treasury
Price" is applicable, in which case such Officer's Certificate should be
delivered on the redemption date;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, if applicable, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes (or portions thereof) called for
redemption ceases to accrue on and after the redemption date;
(g) the applicable section of this Indenture pursuant to
which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness of
the CUSIP and/or ISIN numbers, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days (or such shorter
period allowed by the Trustee) prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice (in the name and at the
expense of the Company) and setting forth the information to be stated in such
notice as provided in this Section 3.03.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption shall become irrevocably due and
payable on the redemption date at the redemption price. A notice of redemption
may not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 11:00 a.m. Eastern time on the Business Day prior
to any redemption date, the Company shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and, if applicable,
accrued and unpaid interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly, and in any event within two (2)
Business Days after the redemption date, return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and, accrued and unpaid
interest, if any, on all Notes to be redeemed.
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If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
Notes or portions of Notes called for purchase or redemption in accordance with
Section 2.08(d) hereof, whether or not such Notes are presented for payment. If
a Note is redeemed on or after a Regular Record Date but prior to the related
Interest Payment Date, then any accrued and unpaid interest, if any, shall be
paid to the Person in whose name such Note was registered at the close of
business on such Regular Record Date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) At any time before May 15, 2006, the Company may on one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
(including Additional Notes) issued under this Indenture at a redemption price
of 108.875% of the principal amount thereof, plus accrued and unpaid interest to
the redemption date, with the net cash proceeds of any Equity Offering;
provided, however, that:
(1) at least 65% of the original aggregate
principal amount of Notes issued under this Indenture
remains outstanding immediately after the occurrence of
such redemption (excluding Notes held by the Parent
Guarantor and its Subsidiaries); and
(2) the redemption date occurs within 90
days of the date of the closing of such Equity Offering.
(b) Except pursuant to the preceding paragraph, the Notes
shall not be redeemable at the Company's option prior to May 15, 2008.
(c) On or after May 15, 2008, the Company may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest on the Notes redeemed, to the applicable
redemption date, if redeemed during the twelve-month period beginning on May 15
of each of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008............................................. 104.438%
2009............................................. 102.958%
2010............................................. 101.479%
2011 and thereafter.............................. 100.000%
(d) Any prepayment pursuant to this Section 3.07 shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth in Sections 4.12 and 4.17 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to, or offers to purchase, the Notes.
35
SECTION 3.09. OFFERS TO PURCHASE.
(a) In the event that, pursuant to Section 4.12 or 4.17
hereof, the Company shall be required to commence an Asset Sale Offer or Change
of Control Offer (each, an "OFFER TO PURCHASE"), it shall follow the procedures
specified below.
(b) The Company shall commence the Offer to Purchase by
sending, by first-class mail, with a copy to the Trustee, to each Holder, at
such Holder's address appearing in the Security Register a notice, the terms of
which shall govern the Offer to Purchase, stating in effect:
(i) that the Offer to Purchase is being made pursuant
to this Section 3.09 and Section 4.12 or 4.17, as the case may be, and,
in the case of a Change of Control Offer, that a Change of Control has
occurred, the transaction or transactions that constitute the Change of
Control, and that a Change of Control Offer is being made pursuant to
Section 4.17 hereof;
(ii) the principal amount of Notes required to be
purchased pursuant to Section 4.12 or 4.17 hereof (the "OFFER AMOUNT"),
the purchase price, the Offer Period and the Purchase Date (each as
defined below);
(iii) except as provided in clause (ix), that all Notes
timely tendered and not withdrawn shall be accepted for payment;
(iv) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(v) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Offer to Purchase
shall cease to accrue interest after the Purchase Date;
(vi) that Holders electing to have a Note purchased
pursuant to the Offer to Purchase may elect to have Notes purchased in
integral multiples of $1,000 only;
(vii) that Holders electing to have a Note purchased
pursuant to the Offer to Purchase shall be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying
Agent, if any, at the address specified in the notice before the close
of business on the third Business Day before the Purchase Date;
(viii) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case
may be, receives, not later than the expiration of the Offer Period, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note (or portions thereof) the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(ix) that, in the case of an Asset Sale Offer, if the
aggregate principal amount of Notes surrendered by Holders exceeds the
Offer Amount, the Company shall select the Notes to be purchased on a
PRO RATA basis (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1,000 or integral
multiples thereof shall be purchased);
(x) that Holders whose Notes were purchased in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer); and
(xi) any other procedures that Holders must follow in
order to tender their Notes (or portions thereof) for payment.
36
(c) The Offer to Purchase shall remain open for a period of
at least 30 days but no more than 60 days following its commencement, except to
the extent that a longer period is required by applicable law (the "OFFER
PERIOD"). No later than five (5) Business Days after the termination of the
Offer Period (the "PURCHASE DATE"), the Company shall purchase the Offer Amount
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Offer to Purchase. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
(d) On or prior to the Purchase Date, the Company shall, to
the extent lawful:
(i) accept for payment (on a PRO RATA basis to the
extent necessary in connection with an Asset Sale Offer) the Offer
Amount of Notes or portions of Notes properly tendered and not withdrawn
pursuant to the Offer to Purchase, or if less than the Offer Amount has
been tendered, all Notes tendered and not withdrawn;
(ii) deposit with the Paying Agent an amount equal to
the Offer Amount in respect of all Notes or portions of Notes properly
tendered; and
(iii) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased
by the Company and that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section
3.09.
(e) The Company, the Depositary or the Paying Agent, as the
case may be, shall promptly (but in any event not later than five (5) Business
Days after the Purchase Date) deliver to each tendering Holder of Notes properly
tendered and accepted by the Company for purchase the Purchase Amount for such
Notes, and the Company shall promptly execute and issue a new Note, and the
Trustee, upon receipt of an Authentication Order shall authenticate and deliver
(or cause to be transferred by book-entry) such new Note to such Holder, in a
principal amount equal to any unpurchased portion of the Note surrendered;
PROVIDED, HOWEVER, that each such new Note shall be in a principal amount of
$1,000 or an integral multiple of $1,000. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Purchase Date.
(f) If the Purchase Date is on or after a Regular Record Date
and on or before the related Interest Payment Date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such Regular Record Date, and no Additional Interest shall
be payable to Holders who tender Notes pursuant to the Offer to Purchase.
(g) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with the Offer to Purchase. To the extent that the provisions of any securities
laws or regulations conflict with Section 4.12 or 4.17, as applicable, this
Section 3.09 or other provisions of this Indenture, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under Section 4.12 or 4.17, as applicable, this
Section 3.09 or such other provision by virtue of such compliance.
(h) Other than as specifically provided in this Section 3.09,
any purchase pursuant to this Section 3.09 shall be made in accordance with the
provisions of Section 3.01 through 3.06 hereof.
37
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on, the Notes on the dates and in the manner
provided in this Indenture and the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other
than the Company, Parent Guarantor or a Subsidiary thereof, holds as of 11:00
a.m. Eastern time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due. Such Paying Agent shall return to the Company
promptly, and in any event, no later than five (5) Business Days following the
date of payment, any money that exceeds such amount of principal, premium, if
any, and interest paid on the Notes. The Company shall pay Additional Interest,
if any, in the same manner, on the dates and in the amounts set forth in a
Registration Rights Agreement, the Notes and this Indenture. If a payment date
is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding Business Day, and no interest shall accrue on such payment
for the intervening period.
The Company shall pay (to the extent that it may lawfully do so)
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods), from time to time on demand at the same rate to the
extent lawful.
Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in the Borough of Manhattan,
The City of
New York, an office or agency (which may be an office or drop
facility of the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where Notes may be presented or surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of any change in the location of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
(c) The Company hereby designates the Corporate Trust Office
of the Trustee, as one such office, drop facility or agency of the Company in
accordance with Section 2.03 hereof.
SECTION 4.03. REPORTS.
(a) Notwithstanding that the Company may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long
as any Notes are outstanding the Company shall furnish to the Trustee and
registered holder of the Notes, within 15 days after it is or would have been
required to be filed with the Commission:
(1) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such
38
Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect
to the annual information only, a report on the annual financial
statements by the Company's certified independent accountants;
and
(2) all information that would be required to be filed with
the Commission on Form 8-K if the Company were required to file
such reports;
PROVIDED, HOWEVER, that the first quarterly report to be furnished pursuant to
this paragraph shall be furnished as soon as is reasonably practicable following
the end of such quarterly period but in no event later than July 31, 2003;
PROVIDED, FURTHER, that the Company shall not be required to furnish such
information to the Trustee or the registered holder of the Notes to the extent
such information is electronically filed with the Commission and is
electronically available to the public free of cost.
(b) In addition, following the consummation of the Exchange
Offer contemplated by the Registration Rights Agreement, whether or not required
by the Commission, the Company shall file a copy of all of the information and
reports referred to in clauses (a)(1) and (a)(2) above with the Commission for
public availability within the time periods specified in the Commission's rules
and regulations (unless the Commission shall not accept such a filing) and make
such information available to securities analysts and prospective investors upon
request.
(c) If the Company has designated any Subsidiaries as
Unrestricted Subsidiaries and has made Investments in such Unrestricted
Subsidiaries in an aggregate of $1.0 million or more, then the quarterly and
annual financial information required by the preceding paragraph shall include a
reasonably detailed presentation, either on the face of the financial statements
or in the footnotes thereto, and in Management's Discussion and Analysis of
Financial Condition and Results of Operations, of the financial condition and
results of operations of the Company and the Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
Subsidiaries of the Company.
(d) For so long as any Notes remain outstanding the Company
and the Guarantors shall furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act to the extent
such information is not electronically filed with the Commission and
electronically available to the public free of cost.
(e) The Company and each of the Guarantors shall otherwise
comply with TIA Section 3.14(a), (b) and (c).
(f) Delivery of such reports, information and documents to
the Trustee pursuant to any of the provisions of this Section 4.03 is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including compliance with any
of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on an Officers' Certificate).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company, Parent Guarantor and their Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company, Parent
Guarantor and their Subsidiaries have kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge, the
Company, Parent Guarantor and their Subsidiaries have kept, observed, performed
and fulfilled each and every covenant contained in this Indenture and are not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
39
principal of, premium, if any, or interest on the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(b) Each of the Company, the Parent Guarantor and the
Subsidiary Guarantors, shall otherwise comply with TIA Section 314(a)(4).
(c) The Company shall deliver to the Trustee, within 30 days
after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Default or Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company and Parent Guarantor shall pay, and shall cause each
of their Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies, except such as are being contested in good
faith and by appropriate proceedings or where the failure to effect such payment
is not adverse in any material respect to the Holders.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each Guarantor covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 4.07. CORPORATE EXISTENCE.
Subject to Article 5 hereof, each of the Company and each
Guarantor shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, and the corporate, partnership
or other existence of each Restricted Subsidiary, in accordance with the
respective organizational documents (as the same may be amended from time to
time) of the Company, Parent Guarantor or any such Restricted Subsidiary;
PROVIDED, HOWEVER, that the Company and each Guarantor shall not be required to
preserve the corporate, partnership or other existence of any Restricted
Subsidiary, if the Board of Directors of each of the Company and Parent
Guarantor shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company, Parent Guarantor and the
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes, or that such
preservation is not necessary in connection with any transaction not prohibited
by this Indenture.
SECTION 4.08. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, pay or cause to be paid any consideration
to or for the benefit of any Holder for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture or the
Notes unless such consideration is offered to be paid or agreed to be paid to
all Holders that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, incur any Indebtedness (including Acquired Debt), and
the Company shall not issue any Disqualified Stock and shall not permit any
Restricted Subsidiary to issue any shares of preferred stock; PROVIDED, HOWEVER,
the Company may issue Disqualified Stock, and the Company and any Subsidiary
Guarantor may incur Indebtedness (including Acquired Debt), if the Fixed Charge
Coverage Ratio for the Company's most recently ended four full fiscal quarters
for which
40
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.00 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or Disqualified Stock had been issued,
as the case may be, at the beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"PERMITTED DEBT"):
(1) the incurrence by the Company or any Guarantor of
additional Indebtedness and letters of credit under one or more
Credit Facilities; provided, however, that the aggregate
principal amount of all Indebtedness of the Company and the
Guarantors incurred pursuant to this clause (1) (with letters of
credit being deemed to have a principal amount equal to the
maximum potential liability of the Company and the Guarantor
thereunder) does not exceed an amount equal to $170.0 million
less the aggregate amount of all repayments of any Indebtedness
under a Credit Facility that have been made by the Company and
any Guarantor since the date of this Indenture with the proceeds
of Asset Sales pursuant to the provisions described under the
provisions of Section 4.12;
(2) the incurrence by the Company and the Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Initial Notes (and the related
Exchange Notes issued in exchange for any Notes issued under
this Indenture);
(4) the incurrence by the Company or any Restricted
Subsidiary of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations,
in each case incurred for the purpose of financing all or any
part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business
of the Company or such Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (4), not to exceed
$7.5 million at any time outstanding;
(5) the incurrence by the Company or any Restricted
Subsidiary of Permitted Refinancing Indebtedness in exchange
for, or the Net Proceeds of which are used to extend, defease,
renew, refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was incurred under the first
paragraph of this covenant or clauses (2), (3), (4), or (5) of
this Section 4.09;
(6) the incurrence by the Company or any Restricted
Subsidiary of intercompany Indebtedness between or among the
Company and any Restricted Subsidiary; provided, however, that:
(A) if the Company or a Guarantor is the obligor
on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes or the note guarantees, as
the case may be; and
(B) (i) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being
held by a Person other than the Company or a Restricted
Subsidiary and (ii) any subsequent sale or other transfer of any
such Indebtedness to a Person that is not either the Company or
a Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (6);
(7) the incurrence by the Company or any Restricted
Subsidiary of Hedging Obligations that are incurred in the
normal course of business and consistent with past business
practices for the
41
purpose of fixing or hedging currency, commodity or interest
rate risk (including with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to
be outstanding in connection with the conduct of their
respective businesses) and not for speculative purposes;
(8) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary that was
permitted to be incurred by another provision of this covenant;
(9) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by worker's
compensation claims and other statutory or regulatory
obligations, self-insurance obligations, tender, bid,
performance, governmental contract, surety or appeal bonds,
standby letters of credit and warranty and contractual service
obligations of like nature, trade letters of credit or
documentary letters of credit, in each case to the extent
incurred in the ordinary course of business of the Company or
such Restricted Subsidiary;
(10) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification,
contribution, earnout, adjustment of purchase price or similar
Obligation, in each case, incurred or assumed in connection with
the disposition of any business, assets or Capital Stock of a
Restricted Subsidiary;
(11) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is
extinguished within three Business Days of incurrence;
(12) the incurrence of Indebtedness by foreign Subsidiaries of
the Company in the aggregate principal amount (or accreted
value, as applicable) at any time outstanding and incurred in
reliance upon this clause (12) not to exceed $10.0 million; and
(13) the incurrence by the Company or any Subsidiary Guarantor
of additional Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding not to
exceed $10.0 million.
(c) For purposes of determining compliance with this
covenant, in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1) through
(13) above or is entitled to be incurred pursuant to the first paragraph of this
covenant, in each case, as of the date of incurrence thereof, the Company shall,
in its sole discretion, classify (or later reclassify in whole or in part, in
its sole discretion) such item of Indebtedness in any manner that complies with
this covenant and such Indebtedness shall be treated as having been incurred
pursuant to such clauses or the first paragraph hereof, as the case may be,
designated by the Company; provided, however, that any incurrences of
Indebtedness under Credit Facilities must be first applied to clause (1) above.
Accrual of interest or dividends, the accretion of accreted value or liquidation
preference and the payment of interest or dividends in the form of additional
Indebtedness or Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09.
SECTION 4.10. RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution (A) on account of the Company's or any Restricted
Subsidiary's Equity Interests (including, without limitation,
any payment in connection with any merger or consolidation
involving the Company or any Restricted Subsidiary) or (B) to
the direct or indirect holders of the Company or any Restricted
Subsidiary's Equity Interests in their capacity as such (other
than dividends or distributions (i) payable in Equity
42
Interests (other than Disqualified Stock) of the Company or (ii)
to the Company or a Restricted Subsidiary);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Subordinated Obligations, other than Subordinated Obligations
owed to the Company or any Restricted Subsidiary, except a
payment of interest or principal at the Stated Maturity thereof;
(4) pay any amount of Management Fees (including Deferred
Management Fees) to a Person other than the Company or a
Restricted Subsidiary; or
(5) make any Restricted Investment (all such payments and
other actions set forth in these clauses (1) through (5) above
being collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such
Restricted Payment:
(A) no Default or Event of Default shall have
occurred and is continuing or would occur as a consequence of
such Restricted Payment; and
(B) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto as
if such Restricted Payment had been made at the beginning of the
most recently ended four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first
paragraph of the covenant described below under the provisions
of Section 4.09; and
(C) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the
Company and the Restricted Subsidiaries after the date of this
Indenture (excluding Restricted Payments permitted by clauses
(2), (3) and (4) of the next succeeding paragraph) is less than
the sum, without duplication, of:
(i) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the beginning of
the first fiscal quarter after which the Notes are first issued to the
end of the Company's most recently ended fiscal quarter in which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), PLUS
(ii) 100% of the aggregate net cash proceeds received
by the Company since the date of this Indenture as a contribution to its
common equity capital or from the issue or sale of Equity Interests of
the Company (excluding Disqualified Stock) or from the issue or sale of
convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company or any Guarantor that have
been converted into or exchanged for Equity Interests of the Company
(other than Equity Interests, Disqualified Stock or debt securities sold
to a Subsidiary of the Company), plus
(iii) to the extent that any Restricted Investment that
was made after the date of this Indenture is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (i) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (ii) the initial amount of such Restricted
Investment, plus
(iv) in case, after the date of this Indenture, any
Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary
under the terms of this Indenture or has been merged, consolidated or
amalgamated with or into, or transfers or conveys assets to, or is
liquidated into the Company or a
43
Restricted Subsidiary and an amount equal to the lesser of (1) the net
book value at the date of the redesignation, combination or transfer of
the aggregate Investments made by the Company and the Restricted
Subsidiaries in the Unrestricted Subsidiary (or of the assets
transferred or conveyed, as applicable), and (2) the fair market value
of the Investments owned by the Company and the Restricted Subsidiaries
in such Unrestricted Subsidiary at the time of the redesignation,
combination or transfer (or of the assets transferred or conveyed, as
applicable).
(b) The preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date
of declaration of the dividend, if at the date of declaration
the dividend payment would have complied with the provisions of
this Indenture;
(2) the redemption, repurchase, retirement, defeasance or
other acquisition of any Equity Interests or Subordinated
Obligations of the Company or any Restricted Subsidiary in
exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Company (other than
Disqualified Stock); provided, however, that the amount of any
such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (3)(b) of the
preceding paragraph (and shall not previously have been relied
on to make a Restricted Payment);
(3) the defeasance, redemption, repurchase or other
acquisition of Subordinated Obligations of the Company or any
Restricted Subsidiary with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; provided,
however, that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from Section
4.10(a)(C)(ii) hereof;
(4) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or
any Restricted Subsidiary held by any member of the Company's
(or any Restricted Subsidiary's) management; provided, however,
that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests in reliance on
this clause (4) may not exceed, (A) prior to the first public
offering of common stock of the Parent Guarantor or the Company,
an amount equal to $10.0 million since the date of this
Indenture and $5.0 million during any twelve-month period; and
(B) after the first public offering of common stock of the
Parent Guarantor or the Company, $1.5 million in any
twelve-month period;
(5) cash payments, dividends or loans to the Parent Guarantor
in amounts equal to: (a) the amounts required for the Parent
Guarantor to pay any federal, state or local taxes to the extent
such taxes are directly attributable to the income, gain,
capital or assets of the Company and its Restricted Subsidiaries
and (b) the amounts required for the Parent Guarantor to pay
franchise taxes and other fees required to maintain its legal
existence and all costs and expenses (including, without
limitation, legal and accounting expenses and filing fees)
incurred by the Parent Guarantor with respect to filings with
the Commission;
(6) any payments made in connection with the Transactions
pursuant to the Recapitalization Agreement and any other
agreements or documents related to the Transactions in effect on
the closing date of the Transactions (without giving effect to
subsequent amendments, waivers or other modifications to such
agreements or documents) or as otherwise described in the
Offering Memorandum, including payments made by the Company to
the Parent Guarantor to allow the Parent Guarantor to satisfy
its Obligations (including indemnification, purchase price
adjustments, transaction fees and expenses, success fees,
non-competition fees and retention bonuses) under such
agreements or documents as such agreements or documents are in
effect on the date of this Indenture;
(7) the repurchase of Indebtedness subordinated to the Notes
at a purchase price not greater than 101% of the principal
amount thereof (plus accrued and unpaid interest) pursuant to a
44
mandatory offer to repurchase made upon the occurrence of a
Change of Control or upon certain Asset Sales; PROVIDED that the
Company first make an offer to purchase the Notes (and
repurchase all tendered Notes) under this Indenture pursuant to
the provisions of this Indenture described under Sections 4.12
and 4.17 hereof; and
(8) other Restricted Payments in an aggregate amount since
the date of the Indenture not to exceed $10.0 million;
PROVIDED, HOWEVER, that, with respect to clauses (2), (3), (4), (7) and (8)
above, no Default or Event of Default shall have occurred and be continuing
immediately after such transaction.
(c) The amount of all Restricted Payments (other than cash)
shall be the fair market value on the date of the Restricted Payment of the
assets, property or securities proposed to be transferred or issued by the
Company or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The fair market value of any assets or securities that are
required to be valued by this covenant and are in excess of $1.0 million shall
be determined by the Board of Directors whose resolution with respect thereto
shall be delivered to the Trustee. The Board of Directors' determination must be
based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the fair market value exceeds
$10.0 million. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.10 were computed, together with a copy
of any fairness opinion or appraisal required by this Indenture.
SECTION 4.11. LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur or assume any consensual Liens of any kind against
or upon any of their respective property or assets, or any proceeds, income or
profit therefrom that secure Senior Subordinated Indebtedness or Subordinated
Obligations, unless:
(1) in the case of Liens securing Subordinated
Obligations, the Notes are secured by a Lien on
such property, assets, proceeds, income or profit
that is senior in priority to such Liens; and
(2) in the case Liens securing Senior Subordinated
Indebtedness, the Notes are equally and ratably
secured by a Lien on such property, assets,
proceeds, income or profit.
SECTION 4.12. ASSET SALES.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, consummate an Asset Sale unless:
(1) The Company (or the Restricted Subsidiary, as the
case may be) receives consideration at the time of
the Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of
Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets sold,
leased, transferred, conveyed or otherwise
disposed of or Equity Interests issued or sold;
(2) at least 75% of the consideration received in the
Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash. For purposes of
this provision, each of the following shall be
deemed to be cash:
(A) any liabilities, as shown on the
Company's or such Restricted Subsidiary's most recent
balance sheet, of the Company or any Restricted
Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the
Notes or any note guarantee) that are assumed by the
transferee of any such assets
45
pursuant to a customary novation agreement that releases
the Company or such Restricted Subsidiary from further
liability;
(B) any securities, notes or other
obligations received by the Company or any such
Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary
into cash within 90 days, to the extent of the cash
received in that conversion; and
(C) properties and assets to be owned by
the Company or any Restricted Subsidiary and used in a
Permitted Business or Capital Stock in one or more
Persons engaged in a Permitted Business that are or
thereby become Restricted Subsidiaries of the Company
(in which case the Company shall, without further action,
be deemed to have applied such deemed cash to an
Investment in additional assets in accordance with clause
(3) below); and
(3) the Company delivers an Officers' Certificate to
the Trustee certifying that such Asset Sale
complies with the foregoing clauses (1) and (2).
(b) Within 365 days after the receipt of any Net Proceeds
from an Asset Sale, the Company or the Restricted Subsidiaries may apply those
Net Proceeds at its option:
(1) to repay Senior Debt of the Company or any
Guarantor (other than Indebtedness owed to the
Company, any Guarantor or any Affiliate of the
Company) and, if the Senior Debt repaid is
revolving credit Indebtedness, to correspondingly
reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets
of, or a majority of the Voting Stock of, another
Person engaged in a Permitted Business; or
(3) to acquire other long-term assets or property that
are used in a Permitted Business.
Pending the final application of any Net Proceeds, the Company or such
Restricted Subsidiary may temporarily reduce revolving credit borrowings or
otherwise invest the Net Proceeds in any manner that is not prohibited by this
Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $5.0
million, the Company shall make an offer (an "Asset Sale Offer") to all holders
of Notes to purchase the maximum principal amount of Notes and, if the Company
is required to do so under the terms of any other Indebtedness that is PARI
PASSU with the Notes, such other Indebtedness on a pro rata basis with the
Notes, that may be purchased out of the Excess Proceeds. The offer price in any
Asset Sale Offer shall be equal to 100% of principal amount plus accrued and
unpaid interest to the date of purchase, and shall be payable in cash. If any
Excess Proceeds remain after consummation of the purchase of all properly
tendered and not withdrawn Notes pursuant to an Asset Sale Offer, the Company
may use such remaining Excess Proceeds for any purpose not otherwise prohibited
by this Indenture. If the aggregate principal amount of Notes and other PARI
PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and (based solely and in
reliance upon an Officer's Certificate of the Company identifying same) such
other PARI PASSU Indebtedness to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
(d) The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any
46
securities laws or regulations conflict with the Asset Sale provisions of this
Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its Obligations under the
Asset Sale provisions of this Indenture by virtue of such conflict.
SECTION 4.13. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its
Capital Stock to the Company or any Restricted Subsidiary, or with respect to
any other interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any Restricted Subsidiary;
(b) make loans or advances to the Company or any Restricted
Subsidiary; or
(c) transfer any of its properties or assets to the Company
or any Restricted Subsidiary.
However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness, Credit
Facilities (including the Credit Agreement) and
other agreements relating to the Transactions as
in effect on the date of this Indenture and any
amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements
or refinancings of those agreements; PROVIDED that
the amendments, modifications, restatements,
renewals, increases, supplements, refundings,
replacement or refinancings are materially no more
restrictive, taken as a whole, with respect to
such dividend and other payment restrictions than
those contained in those agreements on the date of
this Indenture;
(2) this Indenture, the Notes and the note guarantees;
(3) applicable law;
(4) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any
Restricted Subsidiary as in effect at the time of
such acquisition (except to the extent such
Indebtedness or Capital Stock was incurred in
connection with or in contemplation of such
acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or
assets of any Person, other than the Person, or
the property or assets of the Person, so acquired,
PROVIDED that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this
Indenture to be incurred;
(5) customary non-assignment provisions in leases
entered into in the ordinary course of business
and consistent with industry practices;
(6) purchase money obligations (including Capital
Lease Obligations) for property acquired in the
ordinary course of business that impose
restrictions on that property of the nature
described in clause (c) above;
(7) any agreement for the sale or other disposition of
a Restricted Subsidiary or the assets of a
Restricted Subsidiary that restricts distributions
by that Restricted Subsidiary pending its sale or
other disposition or the sale or other disposition
of its assets; or
47
(8) Permitted Refinancing Indebtedness; PROVIDED,
HOWEVER, that the restrictions contained in the
agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive,
taken as a whole, than those contained in the
agreements governing the Indebtedness being
refinanced;
(9) Liens securing Indebtedness otherwise permitted to
be incurred under the provisions of Section 4.11
that limit the right of the debtor to dispose of
the assets subject to such Liens; and
(10) provisions with respect to the disposition or
distribution of assets or property in joint
venture agreements, asset sale agreements, stock
sale agreements and other similar agreements
entered into in the ordinary course of business.
SECTION 4.14. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each, an "AFFILIATE TRANSACTION"), unless:
(a) the Affiliate Transaction is (1) evidenced in writing if
it involves transactions of $1.0 million or more and (2) is on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(b) the Company delivers to the Trustee:
(1) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving
aggregate consideration in excess of $2.5 million,
a resolution of the Board of Directors set forth
in an Officers' Certificate certifying that such
Affiliate Transaction complies with this covenant
and that such Affiliate Transaction has been
approved by a majority of the disinterested
members of the Board of Directors; and
(2) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving
aggregate consideration in excess of $10.0
million, an opinion as to the fairness to the
Company or such Restricted Subsidiary from a
financial point of view issued by an accounting,
appraisal or investment banking firm of national
standing.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of the prior
paragraph:
(1) transactions or payments pursuant to any
employment agreement entered into by the Company
or any Restricted Subsidiary in the ordinary
course of business of the Company or such
Restricted Subsidiary;
(2) transactions between or among the Company and/or
any Restricted Subsidiary;
(3) transactions with a Person that is an Affiliate of
the Company solely because the Company owns an
Equity Interest in such Person;
(4) payment of reasonable and customary fees and
indemnities to directors who are not otherwise
Affiliates of the Company;
48
(5) sales of Equity Interests (other than Disqualified
Stock) to Affiliates of the Company;
(6) transactions involving the payment of fees and
other expenses that are contemplated by the
Transactions; and
(7) Restricted Payments that are permitted by the
provisions of this Indenture described under the
provisions of Section 4.10.
SECTION 4.15. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses, except to
such extent as would not be material to the Company and the Restricted
Subsidiaries, taken as a whole.
SECTION 4.16. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would
be permitted by this Indenture, including the provisions of Sections 4.09 and
4.10 above. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate fair market value of all outstanding Investments owned
by the Company and the Restricted Subsidiaries in the Subsidiary properly
designated shall be deemed to be an Investment made as of the time of the
designation. Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced to the Trustee by the Company delivering to the
Trustee a certified copy of the resolution of the Board of Directors giving
effect to such designation and an Officers' Certificate certifying that such
designation was permitted by the covenant described under the provisions of
Section 4.10 above.
The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER,
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (1) such Indebtedness
is permitted under the covenant described under the provisions of Section 4.09
above, calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period; and (2) no Default or Event
of Default would be in existence following such designation.
SECTION 4.17. REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company
shall, within 30 days of a Change of Control, make an offer (the "CHANGE OF
CONTROL OFFER") pursuant to the procedures set forth in Section 3.09 hereof to
repurchase the Notes on the date specified in such notice, which date shall be
no earlier than 30 days and no later than 90 days from the date of such Change
of Control. Each Holder shall have the right to accept such offer and require
the Company to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of such Holder's Notes pursuant to the Change of Control
Offer at a purchase price, in cash (the "CHANGE OF CONTROL AMOUNT"), equal to
101% of the aggregate principal amount of Notes repurchased, plus accrued and
unpaid interest on the Notes repurchased to the Purchase Date.
(b) The Company shall not be required to make a Change of
Control Offer upon a Change of Control if a third party makes a Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer.
SECTION 4.18. ADDITIONAL GUARANTEES.
If the Company or any Restricted Subsidiary acquires or creates
another Subsidiary after the date of this Indenture that is either formed under
the laws of the United States or any state of the United States or the
00
Xxxxxxxx xx Xxxxxxxx and (1) in which the Company has made an Investment of at
least $0.5 million or (2) that incurs, guarantees or otherwise provides direct
credit support for any Indebtedness, other than pursuant to clause (b)(12) of
Section 4.09 above, then that newly acquired or created Subsidiary shall become
a Guarantor and execute a supplemental indenture and deliver an Officers'
Certificate and an Opinion of Counsel satisfactory to the Trustee within 10
business days of the date on which it was acquired or created; PROVIDED,
HOWEVER, that the foregoing shall not apply to Subsidiaries that have properly
been designated as Unrestricted Subsidiaries in accordance with this Indenture.
The note guarantee of any such newly acquired or created Subsidiary that becomes
a Guarantor shall be subordinated to all Indebtedness under the Credit Agreement
and all other Senior Debt of such Guarantor to the same extent as the Notes are
subordinated to the Senior Debt of the Company.
SECTION 4.19. NO INCURRENCE OF SENIOR SUBORDINATED DEBT
The Company will not incur any Indebtedness that (i) is
subordinate or junior in right of payment to any Senior Debt of the Company and
(ii) senior in any respect in right of payment to the Notes. No Guarantor will
incur any Indebtedness that is subordinate or junior in right of payment to the
Senior Debt of such Guarantor and senior in any respect in right of payment to
such Guarantor's note guarantee.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS.
(a) Neither the Company nor any Guarantor may, directly or
indirectly: (1) consolidate or merge with or into another Person (whether or not
the Company or such Guarantor, as the case may be, is the surviving corporation)
or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Company or any Guarantor,
in one or more related transactions, to another Person; unless:
(1) either: (a) the Company or such Guarantor, as the
case may be, is the surviving corporation; or (b)
the Person formed by or surviving any such
consolidation or merger (if other than the Company
or such Guarantor, as the case may be) or to which
such sale, assignment, transfer, conveyance or
other disposition has been made is either a
corporation organized or existing under the laws
of the United States, any state of the United
States or the District of Columbia or, in the case
of Guarantors formed outside the United States, is
organized under the laws of the jurisdiction under
which such Guarantor is formed;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company
or such Guarantor, as the case may be) or the
Person to which such sale, assignment, transfer,
conveyance or other disposition has been made
assumes by a supplemental indenture under this
indenture all the Obligations of the Company or
such Guarantor, as the case may be, under the
Notes and this Indenture;
(3) immediately after such transaction no Default or
Event of Default exists; and
(4) except with respect to a consolidation or merger
of the Company with or into a Guarantor, or a
Guarantor with or into another Guarantor, the
Company or such Guarantor, as the case may be, or
the Person formed by or surviving any such
consolidation or merger (if other than the Company
or such Guarantor), or to which such sale,
assignment, transfer, conveyance or other
disposition has been made shall, on the date of
such transaction after giving pro forma effect
thereto and any related financing transactions as
if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to
incur at least
50
$1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in
Section 4.09(a) above.
(b) Notwithstanding the preceding clause (a)(4), (i) any
Restricted Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties and assets to the Company or a Subsidiary
Guarantor and (ii) the Company may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another United States
jurisdiction to realize tax benefits.
(c) In addition, the Company may not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. In the case of a lease of all or
substantially all of the assets of the Company, the Company shall not be
released from its Obligations under the Notes or this Indenture, as applicable.
(d) Except as described with respect to the release of note
guarantees of Subsidiary Guarantors under Article 10 of this Indenture, the
entity formed by or surviving any consolidation or merger (if other than the
Company or a Guarantor) shall succeed to, and be substituted for, and may
exercise every right and power of, such Guarantor under this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Each surviving Person shall succeed to, and be substituted for,
and may exercise every right and power of the Company or a Guarantor, as
applicable, under this Indenture; PROVIDED, HOWEVER, that in the case of:
(a) a sale, transfer, assignment, conveyance or other
disposition (unless such sale, transfer, assignment, conveyance or other
disposition is of all or substantially all of the assets of the Company and the
Restricted Subsidiaries, taken as a whole, or in the case of a Guarantor, such
sale, transfer, assignment, conveyance or other disposition is of all or
substantially all of the assets of such Guarantor or all of the Capital Stock of
such Guarantor to a Person that is not (either before or after giving effect to
such transactions) a Subsidiary of the Company or to any Guarantor), or
(b) a lease,
the predecessor company shall not be released from any of the obligations or
covenants under this Indenture, including with respect to the payment of the
Notes and obligations under the guarantees.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following is an Event of Default:
(i) default for 30 days in the payment when due of
interest on the Notes (whether or not prohibited by the subordination
provisions of this Indenture);
(ii) default in payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by the
subordination provisions of this Indenture);
(iii) failure by the Company or any Restricted
Subsidiary for 30 days after notice to comply with the provisions of
Sections 4.09 or 4.10 hereof;
(iv) failure by the Parent Guarantor, the Company or
any Restricted Subsidiary to comply with the provisions of Sections
4.12, 4.17 or 5.01 hereof;
51
(v) failure by the Company or any Restricted
Subsidiary for 60 days after notice to comply with any of its other
agreements in this Indenture or the Notes;
(vi) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any Restricted Subsidiary (or the payment of which is guaranteed by
the Company or any Restricted Subsidiary) whether such Indebtedness or
guarantee now exists, or is created after the date of this Indenture, if
that default:
(A) is caused by a failure to pay principal of, or
interest or premium, if any, on such Indebtedness prior
to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "PAYMENT
DEFAULT"); or
(B) results in the acceleration of such Indebtedness
prior to its express maturity;
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $7.5 million or more;
(vii) failure by the Company or any Restricted
Subsidiary to pay final judgments aggregating in excess of $7.5 million,
which judgments are not paid, discharged or stayed for a period of 60
days;
(viii) except as permitted by this Indenture, any
guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect
or any Guarantor, or any Person acting on behalf of any Guarantor, shall
deny or disaffirm its obligations under its guarantee;
(ix) the Company, Parent Guarantor, or any Restricted
Subsidiary that would constitute a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary:
(A) commences a voluntary case or gives notice
of intention to make a proposal under any Bankruptcy Law;
(B) consents to the entry of an order for relief
against it in an involuntary case or consents to its dissolution
or winding up;
(C) consents to the appointment of a receiver,
interim receiver, receiver and manager, liquidator, Trustee or
custodian of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit
of its creditors;
(E) admits in writing its inability to pay its
debts as they become due or otherwise admits its insolvency; or
(F) seeks a stay of proceedings against it or
proposes or gives notice or intention to propose a compromise,
arrangement or reorganization of any of its debts or obligations
under any Bankruptcy Law; and
(x) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
52
(A) is for relief against the Company, Parent
Guarantor, or any Restricted Subsidiary that would constitute a
Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary
Subsidiary; or
(B) appoints a receiver, interim receiver,
receiver and manager, liquidator, trustee or custodian of the
Company, Parent Guarantor, or any Restricted Subsidiary that
would constitute a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, or for all or substantially all of the
property of the Company, Parent Guarantor or any such Restricted
Subsidiary;
(C) orders the liquidation of the Company,
Parent Guarantor, or any Restricted Subsidiary that would
constitute a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary; or
(D) orders the presentation of any plan or
arrangement, compromise or reorganization of the Company, Parent
Guarantor, or any Restricted Subsidiary that would constitute a
Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary;
and such order or decree remains unstayed and in effect for 60
consecutive days.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than those of the type described
in Section 6.01(ix) or (x)) occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of outstanding Notes may declare the
principal of all the Notes, together with all accrued and unpaid interest, and
premium, if any, to be due and payable by notice in writing to the Company and
the Trustee specifying the respective Event of Default and that such notice is a
notice of acceleration (the "ACCELERATION NOTICE"), and the same shall become
immediately due and payable.
In the case of an Event of Default specified in Section 6.01(ix)
or (x) hereof, all outstanding Notes shall become due and payable immediately
without further action or notice by the Trustee or the Holders. Holders may not
enforce this Indenture or the Notes except as provided in this Indenture.
At any time after a declaration of acceleration with respect to
the Notes, the Holders of a majority in principal amount of the Notes then
outstanding (by notice to the Trustee) may rescind and cancel such declaration
and its consequences if:
(a) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction;
(b) all existing Defaults and Events of Default have been
cured or waived except nonpayment of principal of or interest on the Notes that
has become due solely by reason of such declaration of acceleration;
(c) to the extent the payment of such interest is lawful,
interest (at the same rate specified in the Notes) on overdue installments of
interest and overdue payments of principal which has become due otherwise than
by such declaration of acceleration has been paid;
(d) the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable expenses,
disbursements and advances; and
(e) in the event of the cure or waiver of an Event of Default
of the type described in Section 6.01(ix) or (x), the Trustee has received an
Officers' Certificate and Opinion of Counsel that such Event of Default has been
cured or waived.
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In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by the Company or on the Company's
behalf with the intention of avoiding payment of the premium that the Company
would have been required to pay if the Company had then elected to redeem the
Notes pursuant to Section 3.07 hereof, an equivalent premium shall also become
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to May 15, 2008
by reason of any willful action (or inaction) taken (or not taken) by the
Company or on the Company's behalf with the intention of avoiding the
prohibition on redemption of the Notes prior to May 15, 2008, then the premium
specified in this Indenture shall also become immediately due and payable to the
extent permitted by law upon acceleration of the Notes.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
shall be cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of at least a majority in aggregate principal amount
of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default, and
its consequences, except a continuing Default or Event of Default in the payment
of the principal of or interest on the Notes. Upon any waiver of a Default or
Event of Default such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed cured for every purpose of this Indenture, but
no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to Section 7.01, Section 7.02(f) (including the
Trustee's receipt of the security or indemnification described therein) and
Section 7.07 hereof, in case an Event of Default shall occur and be continuing,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Notes. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or is unduly prejudicial to the rights of other
Holders of Notes.
SECTION 6.06. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any remedy thereunder, unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default or the Trustee receives the notice from
the Company or Parent Guarantor;
(b) Holders of at least 25% in aggregate principal amount of
the Notes then outstanding have made written request to the Trustee to pursue a
remedy;
(c) Holder of a Note or Holders of Notes offer, and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
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(d) the Trustee shall have failed to comply with the request
within 60 days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during the 60-day period the Holder of a majority in
principal amount of the Notes then outstanding shall not have given the Trustee
a direction inconsistent with the request.
The preceding limitations shall not apply to a suit instituted
by a Holder for enforcement of payment of principal of, and premium, if any, or
interest on, a Note on or after the respective due dates for such payments set
forth in such Note.
A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture
(including, without limitation, Section 6.06 hereof), the right of any Holder to
receive payment of principal, premium, if any, and interest on the Notes held by
such Holder, on or after the respective due dates expressed in the Notes
(including in connection with an Offer to Purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01 (i) or (ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest then due and owing
(together with interest on overdue principal and, to the extent lawful,
interest) and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee shall be authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee and its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, moneys, securities and any other properties that the Holders may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 6.10. PRIORITIES.
Any money collected by the Trustee pursuant to this Article 6
and, after an Event of Default, any other money or property distributable in
respect of the Company's and any Guarantor's obligations under this Indenture
shall be paid in the following order:
FIRST: to the Trustee (including any predecessor Trustee), its
agents and attorneys for amounts due under Section 7.07 hereof, including
payment of all compensation, expenses and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more than 10%
in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be
determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions, which by
any provision hereof are specifically required to be
furnished to the Trustee, to determine whether or not
they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of
mathematical calculations or other facts stated
therein).
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(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the
effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in any such
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(d) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company. Any resolution of the Board of Directors
shall be sufficiently evidenced by a Board Resolution.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(f) The Trustee shall not be deemed to have notice, or be
charged with knowledge of any Default or Event of Default unless written notice
of any event which is in fact such a Default or Event of Default is received by
a Responsible Officer of the Trustee at the Corporate Trust Office of the
Trustee from the Company or
57
the Holders of 25% in aggregate principal amount of the outstanding Notes, and
such notice references the specific Default or Event of Default, the Notes and
this Indenture.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its power and duties hereunder.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants herein.
(i) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission
for permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee shall also be subject to Sections 7.10 and
7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall transmit by first-class mail to
Holders as their names and addresses appear in the Security Register a notice of
the Default or Event of Default within 90 days after it occurs, unless such
Default or Event of Default shall have been cured or waived. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also shall
comply with TIA Section 313(b)(2). The Trustee also shall transmit by mail all
reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange and any delisting thereof.
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its acceptance of this
Indenture and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee, including in its
capacity as any Agent, or any predecessor Trustee including in its capacity as
any Agent for, and hold it harmless against, any and all losses, claims,
damages, penalties, fines, liabilities or expenses, including incidental and
out-of-pocket expenses and reasonable attorneys fees (for purposes of this
Article 7, "LOSSES") incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent such losses may be attributable to its gross negligence or willful
misconduct. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its Obligations under this Section 7.07, to the extent
the Company has not been materially prejudiced thereby. The Company shall defend
the claim, and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel if the Trustee has been reasonably advised by counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the Company and in the reasonable judgment
of such counsel it is advisable for the Trustee to engage separate counsel, and
the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The Company need not reimburse any expense
or indemnify against any loss incurred by the Trustee through the Trustee's own
gross negligence or willful misconduct.
The obligations of the Company and (by virtue of Section 10.01)
the Guarantors under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture, the resignation or removal of the Trustee, payment
in full of the Notes and the termination for any reason of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal, premium,
if any, and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture, the resignation or removal of the
Trustee, payment in full of the Notes and the termination for any reason of this
Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(ix) or (x) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time upon 30 days'
prior notice to the Company and be discharged from the trust hereby created by
so notifying the Company. The Holders of a majority in aggregate principal
amount of the then outstanding Notes may remove the Trustee by so notifying the
Trustee and the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
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(b) the Trustee is adjudged bankrupt or insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not deliver its written acceptance
of appointment within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company, or the Holders of at least 10% in aggregate
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been
a Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. Subject to the Lien provided for in Section 7.07 hereof,
the retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee; PROVIDED, HOWEVER, that all sums owing to the Trustee
hereunder shall have been paid. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
In the case of an appointment hereunder of a separate or
successor Trustee with respect to the Notes, the Company, the Guarantors, any
retiring Trustee and each successor or separate Trustee with respect to the
Notes shall execute and deliver an indenture supplemental hereto (1) which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of any retiring Trustee with
respect to the Notes as to which any such retiring Trustee is not retiring shall
continue to be vested in such retiring Trustee and (2) that shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such separate, retiring or successor Trustee shall be Trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any such other Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person, the successor Person without any further act shall, if such successor
Person is otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a Person
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50.0
million (or a wholly-owned Subsidiary of a bank or trust company, or
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of a bank holding company, the principal Subsidiary of which is a bank or trust
company having a combined capital and surplus of at least $50.0 million) as set
forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b); provided, however that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which the
securities or certificates of interest or participation in other securities of
the Company or any Guarantor are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
Nothing contained herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to last paragraph
of Section 310(b) of the TIA.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its Obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE") and each Guarantor shall be released from all of its Obligations
under its guarantee. For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a), (b) and (d) below, and to have satisfied all its
other Obligations under the Notes and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, or interest on such Notes when such payments
are due, (b) the Company's Obligations with respect to such Notes under Article
2 and Sections 4.01 and 4.02 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder (including under Section 7.07) and the
Company's and the Guarantors' Obligations in connection therewith and (d) this
Article 8. If the Company exercises under Section 8.01 hereof the option
applicable to this Section 8.02, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, payment of the Notes may not be accelerated
because of an Event of Default. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its Obligations under the covenants contained in Sections 4.05 and 4.06 and
4.09 through 4.18 hereof, and the operation of Sections 5.01(a)(4) hereof, with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.04 hereof are satisfied (hereinafter, "COVENANT DEFEASANCE") and
each Guarantor shall be released
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from all of its Obligations under its guarantee with respect to such covenants
in connection with such outstanding Notes and the Notes shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company and
the Guarantors may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. If the Company exercises under Section 8.01 hereof the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, payment of the Notes may not be
accelerated because of an Event of Default specified in clause (iii) (with
respect to the covenants contained in Sections 4.09 or 4.10 hereof, (iv) (with
respect to the covenants contained in sections 4.12 or 4.17 or Section
5.01(a)(4) hereof), (v), (vi), (vii), (ix) and (x) of such Section 6.01 (but in
the case of (ix) and (x) of Section 6.01 hereof, with respect to Restricted
Subsidiaries only) or because of the Company's failure to comply with Section
5.01(a)(4) hereof.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes.
In order to exercise Legal Defeasance or Covenant Defeasance:
(a) the Company shall irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as shall be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, and premium, if any, and interest on the
outstanding Notes on the Stated Maturity or on the applicable redemption date,
as the case may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(b) in the case of Legal Defeasance, the Company shall
deliver to the Trustee an Opinion of Counsel confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes shall not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall
deliver to the Trustee an Opinion of Counsel confirming that Holders of the
outstanding Notes shall not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a Default under, any material
agreement or instrument (other than this Indenture), to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
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(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(g) the Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been
satisfied.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (b) or (c) above need not be delivered if at such time all outstanding
Notes have been irrevocably called for redemption. In the case of Legal
Defeasance, the note guarantees, if any, shall terminate and in the case of
Covenant Defeasance the note guarantees, if any, shall terminate with respect to
such covenants.
SECTION 8.05. DEPOSITED CASH AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all cash and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
8.05, the "TRUSTEE") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of all sums due and
to become due thereon in respect of principal, premium, if any, and interest but
such cash and securities need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
except in the case of an Event of Default the Trustee shall deliver or pay to
the Company, subject, nevertheless, to the Lien provided for in Section 7.07,
from time to time upon the request of the Company any cash or non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in
the opinion of a nationally recognized firm of independent certified public
accountants of recognized international standing expressed in a written
certification thereof delivered to the Trustee (which may be the certification
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
The Trustee shall promptly, and in any event, no later than five
(5) Business Days, pay to the Company after request therefor any excess money
held with respect to the Notes at such time in excess of amounts required to pay
any of the Company's Obligations then owing with respect to the Notes.
Any cash or non-callable Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal, premium, if any, or interest on any Note and remaining
unclaimed for one year after such principal, premium, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such cash and securities, and all liability of the Company as Trustee thereof,
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in THE
NEW YORK TIMES and THE WALL STREET
JOURNAL (national edition), notice that such cash and securities remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such cash and securities then remaining shall be repaid to the Company.
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SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's Obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such cash and securities in accordance with Section 8.02
or 8.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company
makes any payment of principal of, premium, if any, or interest on any Note
following the reinstatement of its Obligations, the Company shall be subrogated
to the rights of the Holders to receive such payment from the cash and
securities held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder to:
(a) cure any ambiguity, defect or inconsistency;
(b) provide for uncertificated Notes in addition to or in
place of certificated Notes (PROVIDED that the uncertificated Notes are issued
in registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code);
(c) provide for the assumption of the Company's or a
Guarantor's Obligations to Holders in the case of a merger, consolidation or
sale, assignment, transfer, conveyance or other disposition of all or
substantially all of the assets of the Company or such Guarantor, pursuant to
Section 5.01;
(d) make any change that would provide any additional rights
or benefits to the Holders or that does not adversely affect the legal rights
under this Indenture of any such Holder;
(e) provide for or confirm the issuance of Additional Notes
otherwise permitted to be incurred by this Indenture; or
(f) comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company, a
Guarantor and the Trustee may amend or supplement this Indenture and the Notes
with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes, including Additional Notes, if any, then outstanding voting
as a single class (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or Exchange Offer for, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (except a continuing Default or Event of Default (i) in the
payment of principal, premium, if any, interest, if any, on the Notes and (ii)
in respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of the Holder of each Note affected by
such modification or amendment ) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of at least
a majority in aggregate principal amount of the Notes, including Additional
Notes, if any, then outstanding voting as a single class (including consents
obtained in connection with a purchase of, or tender offer or Exchange Offer
for, the Notes).
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Without the consent of each Holder, an amendment or waiver under
this Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of
any Note or alter the provisions with respect to the redemption of the Notes
relating to the provisions under Section 4.17 hereof;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of, or interest or premium, if any, on the Notes, (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment Default that resulted
from such acceleration);
(e) make any Note payable in money other than that stated in
such Note;
(f) make any change in the provisions (including applicable
definitions) of this Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal of, premium, if any,
or interest, if any, on the Notes;
(g) waive a redemption or repurchase payment with respect to
any Note, including a payment required by the provisions under Sections 4.12 and
4.17 hereof;
(h) make any change in any note guarantees that would
adversely affect the holders of the Notes or release any Guarantor from any of
its Obligations under its note guarantee or this Indenture, except in accordance
with the terms of this Indenture;
(i) make any change to the subordination provisions of this
Indenture (including applicable definitions) that would adversely affect the
holders of the Notes; or
(j) make any change in the preceding amendment and waiver
provisions.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
supplemental indenture. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; PROVIDED that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 120 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holder of each Note affected
thereby to such Holder's address appearing in the Security Register a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amended or supplemental indenture
or waiver.
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SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion thereof that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the
consent as to its Note or portion thereof if the Trustee receives written notice
of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver shall become effective in
accordance with its terms and thereafter shall bind every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon an Officers' Certificate and an Opinion
of Counsel stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture and that such amended or
supplemental indenture is the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms, subject to customary
exceptions and that such amended or supplemental indenture complies with the
provisions hereof (including Section 9.03 hereof).
ARTICLE 10.
GUARANTEES
SECTION 10.01. GUARANTEE.
Subject to Articles 10 and 11, the Guarantors hereby
unconditionally guarantee, jointly and severally, on a senior subordinated basis
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, subject to any
applicable grace period, whether at Stated Maturity, by acceleration, redemption
or otherwise, the due and punctual payment of interest on the overdue principal
and premium, if any, and to the extent permitted by law, interest, and the due
and punctual performance of all other Obligations of the Company to the Holders
and the Trustee under this Indenture, the Registration Rights Agreement or any
other agreement with or for the benefit of the Holder or the Trustee, all in
accordance with the terms hereof and thereof. Each Guarantor agrees that this is
a guarantee of payment and not a guarantee of collection.
Each Guarantor hereby agrees that its Obligations with regard to
its guarantee shall be joint and several, unconditional, irrespective of the
validity or enforceability of the Notes or the Obligations of the Company under
this Indenture, the absence of any action to enforce the same, the recovery of
any judgment against the
66
Company or any other obligor with respect to this Indenture, or the Notes, any
action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor further, to the extent permitted by law,
waives and relinquishes all claims, rights and remedies accorded by applicable
law to guarantors and agrees not to assert or take advantage of any such claims,
rights or remedies, including, but not limited to: (a) any right to require any
of the Trustee, the Holders or the Company (each a "BENEFITED PARTY"), as a
condition of payment or performance by such Guarantor, to first (1) proceed
against the Company, any other Guarantor or any other Person, (2) proceed
against or exhaust any security held from the Company, any such other guarantor
or any other Person, (3) proceed against or have resort to any balance of any
deposit account or credit on the books of any Benefited Party in favor of the
Company or any other Person, or (4) pursue any other remedy in the power of any
Benefited Party whatsoever; (b) any defense arising by reason of the incapacity,
lack of authority or any disability or other defense of the Company, including
any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the guarantees or any agreement or
instrument relating thereto or by reason of the cessation of the liability of
the Company from any cause other than payment in full of the Obligations under
the guarantees; (c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal; (d) any defense based
upon any Benefited Party's errors or omissions in the administration of the
Obligations under the guarantees, except behavior which amounts to bad faith;
(e)(1) any principles or provisions of law, statutory or otherwise, which are or
might be in conflict with the terms of the guarantees and any legal or equitable
discharge of such Guarantor's Obligations hereunder, (2) the benefit of any
statute of limitations affecting such Guarantor's liability hereunder or the
enforcement hereof, (3) any rights to set-offs, recoupments and counterclaims
and (4) promptness, diligence and any requirement that any Benefited Party
protect, secure, perfect or insure any security interest or lien or any property
subject thereto; (f) notices, demands, presentations, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of the guarantees, notices of Default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under the guarantees or any agreement related
thereto, and notices of any extension of credit to the Company and any right to
consent to any thereof; (g) to the extent permitted under applicable law, the
benefits of any "One Action" rule and (h) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
Guarantors or sureties, or which may conflict with the terms of the guarantees.
Except to the extent expressly provided herein, including Sections 8.02, 8.03
and 10.05 hereof, each Guarantor hereby covenants that its guarantee shall not
be discharged except by complete performance of the Obligations contained in its
guarantee and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of all Obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in Section 6.02
hereof for the purposes of this guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such Obligations as provided in Section 6.02 hereof, such Obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this guarantee. The Guarantors 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 the guarantee.
Each Guarantor agrees, and each Holder by accepting a Guarantee
agrees, that the Obligations of each Guarantor under its Guarantee pursuant to
this Article 10, other than its obligation in respect of amounts due under
Section 7.07, shall be junior and subordinated to the Senior Debt of such
Guarantor (including without limitation, guarantees of Obligations arising under
the Credit Agreement) on the same basis as the Notes are junior and subordinated
to the Senior Debt. For purposes of the foregoing sentence, the Trustee and the
Holders shall have the rights to receive and/or retain payments by any of the
Guarantors, or to take or sustain any enforcement actions
67
with respect to such Guarantees, only at such time as they may receive and/or
retain payments or undertake and sustain enforcement actions in respect of the
Notes pursuant to Article 11.
SECTION 10.02. LIMITATION ON GUARANTOR LIABILITY.
(a) Each Guarantor, and each Holder by its acceptance of
Notes, hereby confirms that it is the intention of all such parties that the
guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that each
Guarantor's liability shall be that amount from time to time equal to the
aggregate liability of such Guarantor under the guarantee, but shall be limited
to the lesser of (a) the aggregate amount of the Company's Obligations under the
Notes and this Indenture or (b) the amount, if any, which would not have (1)
rendered the Guarantor "insolvent" (as such term is defined in the Federal
Bankruptcy Code and in the Debtor and Creditor Law of the State of
New York) or
(2) left it with unreasonably small capital at the time its guarantee with
respect to the Notes was entered into, after giving effect to the incurrence of
Existing Indebtedness immediately before such time; PROVIDED, HOWEVER, it shall
be a presumption in any lawsuit or proceeding in which a Guarantor is a party
that the amount guaranteed pursuant to the guarantee with respect to the Notes
is the amount described in clause (a) above unless any creditor, or
representative of creditors of the Guarantor, or debtor in possession or Trustee
in bankruptcy of the Guarantor, otherwise proves in a lawsuit that the aggregate
liability of the Guarantor is limited to the amount described in clause (b).
(b) In making any determination as to the solvency or
sufficiency of capital of a Guarantor in accordance with the proviso of Section
10.2(a) hereof, the right of each Guarantor to contribution from other
Guarantors and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.
SECTION 10.03. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its guarantee set forth in Section 10.01 hereof,
each Guarantor hereby agrees that a notation of such guarantee in substantially
the form included in Exhibit D attached hereto shall be endorsed by an Officer
of such Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Guarantor by its
President or one of its Vice Presidents.
Each Guarantor hereby agrees that its guarantee set forth in
Section 10.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such guarantee.
If an Officer whose signature is on this Indenture or on the
guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a guarantee is endorsed, the guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the guarantee
set forth in this Indenture on behalf of the Guarantors.
SECTION 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 10.05 hereof, no
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving person) another Person whether or not affiliated with
such Guarantor unless:
(a) subject to Section 10.05 hereof, the Person formed by or
surviving any such consolidation or merger (if other than a Guarantor or the
Company) unconditionally assumes all the Obligations of such Guarantor, pursuant
to a supplemental indenture under this Indenture, the guarantee and any
Registration Rights Agreements on the terms set forth herein or therein; and
(b) Guarantor complies with the requirements of Article 5
hereof.
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In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee, of the guarantee endorsed upon the Notes
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by Guarantor, such successor Person shall succeed
to and be substituted for Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the guarantees so issued shall in all respects
have the same legal rank and benefit under this Indenture as the guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture
as though all of such guarantees had been issued at the date of the execution
hereof.
Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
SECTION 10.05. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) a Subsidiary or a parent of the
Company, then such Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of such Guarantor)
shall be released and relieved of any Obligations under its guarantee; PROVIDED
that the Net Proceeds of such sale or other disposition shall be subject to all
applicable provisions of this Indenture, including without limitation Section
4.12 hereof. If a Restricted Subsidiary which is a Guarantor is designated as an
Unrestricted Subsidiary in accordance with the provisions of Section 4.16
hereof, such Guarantor shall be released and relieved of any Obligations under
its guarantee. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition or designation was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.12 hereof,
the Trustee shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its Obligations under its guarantee.
Any Guarantor not released from its Obligations under its
guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other Obligations of any Guarantor under this
Indenture.
ARTICLE 11.
SUBORDINATION
SECTION 11.01. AGREEMENT TO SUBORDINATE.
The Company and each Guarantor agrees, and each Holder by
accepting a Note agrees, that the Indebtedness evidenced by, and all "payments"
on and "distributions" on or with respect to, the Notes (including any
obligation to repurchase the Notes) and any note guarantees, is subordinated in
right of payment, to the extent and in the manner provided in this Article 11,
to the prior payment in full in cash of all Senior Debt (whether outstanding on
the date hereof or hereafter created, incurred, assumed or guaranteed. This
Article 11 shall constitute a continuing agreement with all Persons who become
holders of, or continue to hold Senior Debt, and such provisions are made for
the benefit of the holders of Senior Debt.
SECTION 11.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment or distribution of the assets of the Company to
creditors of the Company or the relevant Guarantor in a liquidation or
dissolution of the Company or the Guarantors in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or any
Guarantor or their respective
69
property, an assignment for the benefit of creditors or any marshaling of the
Company's and any Guarantor's assets and liabilities, the holders of Senior Debt
shall be entitled to receive payment in full in cash of all Obligations due in
respect of such Senior Debt (including interest after the commencement of any
such proceeding at the rate specified in the applicable Senior Debt), including,
without limitation, in the case of Senior Debt under the Credit Agreement,
interest after the commencement of any such proceeding at the rate specified in
the Credit Agreement whether or not the claim for such interest is allowed as a
claim after such bankruptcy filing, before the Holders shall be entitled to
receive any payment or distribution with respect to the Notes or guarantees, and
until all Obligations with respect to Senior Debt are paid in full in cash, any
payment or distribution to which the Holders would be entitled but for this
Article 11 shall be made to the holders of Senior Debt (except that Holders may
receive and retain Permitted Junior Securities and payments made from the trust
described under Article 8 or Section 12.02 if such funds were deposited in
accordance with, and to the extent permitted by, this Article 11).
SECTION 11.03. DEFAULT ON DESIGNATED SENIOR DEBT.
(a) The Company may not make any payments or distributions
with respect to the Notes or any guarantee if (i) any Designated Senior Debt
(including principal, premium, if any or interest) or any Obligation owing from
time to time under or in respect of Designated Senior Debt is not paid in full
in cash when due (whether at maturity, by acceleration, lapse of time, demand or
otherwise) or (ii) any other 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 prior to the date on which it would otherwise
have been due and payable and a Responsible Officer of the Trustee receives a
notice of such Default (a "PAYMENT BLOCKAGE NOTICE") from the Company or (1)
with respect to Designated Senior Debt arising under the Credit Agreement, from
the agent for the lenders thereunder, or (2) with respect to any other
Designated Senior Debt, from a representative of the holders of any such
Designated Senior Debt (unless, in either case, the default has been cured or
waived and any such acceleration has been rescinded or such Designated Senior
Debt has been paid in full in cash or discharged). However, the Company and the
Guarantors may and shall pay the Notes without regard to the foregoing if the
Company and a Responsible Officer of the Trustee receive written notice
approving such payment from the trustee, agent or representative, if any, (the
"REPRESENTATIVE") for an issue of Designated Senior Debt with respect to which
either of the events set forth in clause (i) or (ii) of the immediately
preceding sentence has occurred and is continuing.
(b) Payments on the Notes shall be resumed:
(i) in the case of a payment Default, upon the earlier
of the date on which such default is cured or waived or such Designated
Senior Debt has been discharged or paid in full in cash, and,
(ii) in the case of a nonpayment Default, upon the
earliest of (1) the date on which such nonpayment Default is cured or
waived, (2) 179 days after which the date on which the applicable
Payment Blockage Notice is received unless the maturity of any
Designated Senior Debt has been accelerated, (3) the date on which such
payment blockage period shall have been terminated by written notice
received by a Responsible Officer of the Trustee from the agent under
the Credit Agreement as long as Indebtedness under the Credit Agreement
shall be outstanding and thereafter by the party initiating such payment
blockage period or (4) the date on which such Designated Senior Debt has
been discharged or paid in full in cash.
(c) No new Payment Blockage Notice shall be delivered unless
and until (i) 360 days have elapsed since the delivery of the immediately prior
Payment Blockage Notice and (ii) all scheduled payments of principal, interest
and premium on the Notes that have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been waived
for a period of not less than 90 days. Following the expiration of any period
during which the Company is prohibited from making payments on the Notes
pursuant to a Payment Blockage Notice, the Company shall be obligated to resume
making any and all required payments in respect of the Notes, including any
missed payments, unless the maturity of any Designated Senior Debt has been
accelerated, and such acceleration remains in full force and effect.
(d) The Company shall give prompt written notice to the
Trustee of any default in the payment of any Senior Debt or any acceleration
under any Senior Debt or under any agreement pursuant to which
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Senior Debt may have been issued. Failure to give such notice shall not affect
the subordination of the Notes to the Senior Debt or the application of the
other provisions provided in this Article Eleven.
(e) So long as any Indebtedness is outstanding under the
Credit Agreement, only the agent under such Credit Agreement shall be permitted
to deliver a Payment Blockage Notice or to otherwise act as the Representative
of the holders of Designated Senior Debt.
SECTION 11.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt (including,
without limitation, the agent under the Credit Agreement) or the Representative
of the acceleration.
SECTION 11.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee receives or is holding, or any
Holder receives, any payment or distribution with respect to the Notes or any
guarantee of the Notes, and such payment is prohibited by Section 11.02 or 11.03
hereof, such payment or distribution shall be held by the Trustee or such
Holder, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (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 the Senior Debt
remaining unpaid to the extent necessary to pay such Obligations in full in cash
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 such obligations on the part of the Trustee as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall mistakenly pay over or distribute to or on
behalf of Holders or the Company, any Guarantor, or any other Person money or
assets to which any holders of Senior Debt shall be entitled by virtue of this
Article 11, unless a Responsible Officer of the Trustee has received a Payment
Blockage Notice and such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.
SECTION 11.06. NOTICE BY THE COMPANY.
The Company shall 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 or guarantees to violate this Article 11,
but failure to give such notice shall not affect the subordination of the Notes
or the guarantees to the Senior Debt as provided in Articles 10 and 11.
SECTION 11.07. SUBROGATION.
After all Senior Debt is paid in full in cash and until the
Notes are paid in full, Holders shall 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. A distribution
made under this Article 11 to holders of Senior Debt that otherwise would have
been made to Holders is not, as between the Company and Holders, a payment by
the Company on the Notes.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 11 shall
have been applied, pursuant to the provisions of this Article 11, to the payment
of all amounts payable under the Senior Debt, then and in such case the Holders
shall be entitled to receive from the holders of such Senior Debt at the time
outstanding any payments or distributions received by such holders of such
Senior Debt in excess of the amount sufficient to pay all amounts payable under
or in respect of such Senior Debt in full in cash; PROVIDED, HOWEVER, that such
payments or distributions shall be paid first pro rata to Holders that
previously paid amounts and then pro rata to all Holders.
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SECTION 11.08. RELATIVE RIGHTS.
This Article 11 defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the
Obligation of the Company, which is absolute and unconditional, to pay
principal, premium and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders and creditors of
the Company other than their rights in relation to holders of Senior Debt; or
(c) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders and owners
of Senior Debt to receive distributions and payments otherwise payable to
Holders.
If the Company fails because of this Article 11 to pay
principal, premium and interest on a Note on the due date, the failure is still
a Default.
SECTION 11.09. SUBORDINATION MAY NOT BE IMPAIRED BY THE COMPANY.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or by the failure of the Company to
comply with this Indenture.
Subject to the other provisions of this Indenture, the holders
of the 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
Articles 10 and 11, or the obligations hereunder of the Holders to the holders
of the Senior Debt, do any one or more of the following: (a) change in the
manner, place, or terms of payment, or extend the time of payment of, or renew
or alter, Senior Debt or any instrument evidencing the same or any agreement
under which the Senior Debt is outstanding or secured; (b) sell, exchange,
release, or otherwise deal with any property pledged, mortgaged, or otherwise
securing the 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, the Guarantor or any other Person; PROVIDED,
HOWEVER, that this provision shall not in any way permit the Company or any
Guarantor to take any action otherwise prohibited by this Indenture.
SECTION 11.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company or any
Guarantor referred to in this Article 11, the Trustee and the Holders shall 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 for the purpose of ascertaining the Persons entitled
to participate in such distribution (so long as the existence of the
subordination provisions of Articles 10 and 11 have been brought to the
attention of such court, Representative, liquidating trustee or agent, or other
Person), 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 11.
SECTION 11.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge or
notice of the existence of any facts that would prohibit the making of any
payment to or distribution by the Trustee, and the Trustee and the Paying Agent
may continue to make payments on the Notes, unless and until a Responsible
Officer of the Trustee shall have received at the Corporate
72
Trust Office of the Trustee no later than two (2) Business Days prior to the due
date of such payment written notice of facts that would cause the payment of any
principal, premium and interest with respect to the Notes to violate this
Article 11 and, prior to the receipt of any such written notice, the Trustee,
shall be entitled in all respects conclusively to presume that no such fact
exists. Unless the Trustee shall have received the notice provided for in the
preceding sentence, the Trustee shall have full power and authority to receive
such payment and to apply the same to the purpose for which it was received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date. Only the Company or a Representative may give the notice.
Nothing in this Article 11 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 6.10 and 7.07 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 11.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to acknowledge and effectuate the subordination
as provided in this Article 11, and appoints the Trustee to act as the Holder's
attorney-in-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 Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, a Representative of Designated Senior Debt is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes and the Trustee shall have no liability therefor.
SECTION 11.13. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of Government Securities held in trust under
Article 8 or Section 12.02 hereof by the Trustee (or other qualifying trustee)
not in violation of Section 11.03 hereof for the payment of principal of (and
premium, if any) and interest on the Notes shall not be subordinated to the
prior payment of any Senior Debt or subject to the restrictions set forth in
this Article 11, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Debt or any other creditor of the
Company.
SECTION 11.14. PAYMENT AND DISTRIBUTION.
For purposes of this Article 11, the term "payment" and/or
"distribution" means any payment or distribution (whether direct or indirect,
whether in cash, property, securities, or otherwise, and whether obtained or
distributed by set-off, liquidation, bankruptcy distribution, settlement, or
otherwise) made by any Person (including, without limitation, any payments or
distributions made pursuant to Section 4.17 or by any court or governmental body
or agency, any trustee in bankruptcy, or any liquidating trustee) with respect
to any Note or any guarantees or otherwise under this Indenture, including,
without limitation, payment of principal, premium or interest, on the Notes or
any payments under or with respect to any note guarantees, any depositing of
funds with the Trustee or any Paying Agent (including, without limitation, a
deposit in respect of defeasance or redemption, any payment on account of any
optional or mandatory redemptions or repurchase provisions, any payment or
recovery on any claim under this Indenture, any note guarantees, any Note, or
relating to or arising out of the offer, sale, or purchase of any Note (whether
for rescission or damages and whether based on contract, tort, duty imposed by
law, or any other theory of liability); PROVIDED THAT, for the purposes of this
Article 11, all Obligations now or hereafter existing under any Senior Debt,
(including, without limitation, the Credit Agreement, any Hedging Obligations or
agreements with respect to the issuance of letters of credit) shall not be
deemed to have been paid in full unless the holders thereof shall have received
payment in full and all commitments thereunder and all letters of credit issued
thereunder have expired.
SECTION 11.15. NO CLAIMS.
No holder of the Subordinated Obligations shall have any claim
to any property or assets of the Company, any Guarantor, or any Subsidiary of
the Company or any Guarantor, unless and until the Senior Debt shall have been
fully paid in cash.
73
SECTION 11.16. ACKNOWLEDGEMENT OF HOLDERS.
Each holder of Subordinated Obligations by accepting a Note or a
guarantee acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and consideration to each holder of
Senior Debt, whether such Senior Debt was created or acquired before or after
the issuance of the Notes or the guarantees, 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.
ARTICLE 12.
SATISFACTION AND DISCHARGE
SECTION 12.01. SATISFACTION AND DISCHARGE.
This Indenture shall be discharged and shall cease to be of
further effect as to all Notes issued hereunder, when:
(1) either:
(A) all Notes that have been authenticated,
except lost, stolen or destroyed Notes that have been replaced
or paid and Notes for whose payment money has been deposited in
trust and thereafter repaid to the Company, have been delivered
to the Trustee for cancellation; or
(B) all Notes that have not been delivered to
the Trustee for cancellation have become due and payable by
reason of the mailing of a notice of redemption or otherwise or
shall become due and payable within one year, and the Company
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities, in such amounts as shall be
sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the
Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of
maturity or redemption;
(2) no Default or Event of Default has occurred
and is continuing on the date of the deposit or shall
occur as a result of the deposit and the deposit shall
not result in a breach or violation of, or constitute a
default under, any other instrument to which the Company
or any Guarantor is a party or by which the Company or
any Guarantor is bound;
(3) the Company has paid or caused to be paid
all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply
the deposited money toward the payment of the Notes at
maturity or the redemption date, as the case may be.
In addition, the Company shall have delivered an Officers'
Certificate and an Opinion of Counsel to the Trustee stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Holders under Section 4.01 and
to the Trustee under Section 7.07 shall survive.
74
SECTION 12.02. DEPOSITED CASH AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 12.03 hereof, all cash and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
12.02, the "TRUSTEE") pursuant to Section 12.01 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest but such cash and securities need not be segregated from other funds
except to the extent required by law.
SECTION 12.03. REPAYMENT TO COMPANY.
Any cash or non-callable Government Securities deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on, any Note and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder shall thereafter, as an unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such cash and securities, and all liability of the Company as Trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in THE
NEW YORK TIMES and THE
WALL STREET JOURNAL (national edition), notice that such cash and securities
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such cash and securities then remaining shall be repaid to
the Company.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the provision required by the TIA shall control.
SECTION 13.02. NOTICES.
Any notice, request or other communication by the Company and/or
a Guarantor or the Trustee to the other is duly given if in writing and
delivered in person or mailed by first class mail (registered or certified,
return receipt requested), facsimile transmission or overnight air courier
guaranteeing next-day delivery, to the other's address:
If to the Company or the Subsidiary Guarantors:
Medex, Inc.
0000 Xxxxx-Xxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
75
If to the Parent Guarantor:
MedVest Holdings Corporation
0000 Xxxxx-Xxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
And a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: R. Xxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Trustee:
The Bank of
New York
000 Xxxxxxx Xxxxxx 0X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Facsimile No.: (000) 000-0000
The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
All notices, requests and other communications (other than those
sent to the Trustee) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if
sent by facsimile transmission; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next-day delivery.
All notices and communications to the Trustee shall be deemed duly given and
effective only upon receipt.
Any notice or other communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next-day delivery to its address shown on the
Security Register. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
76
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
With respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate, certificates of public officials or reports or opinions of experts.
SECTION 13.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company, or any Guarantor, as such, shall have any liability for any
Obligations of the Company or of the Guarantors under the Notes, this Indenture,
the guarantees or for any claim based on, in respect of, or by reason of, such
Obligations or their creation. Each Holder of Notes, by accepting a Note, waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver and release may not be
effective to waive liabilities under the federal securities laws.
SECTION 13.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE
77
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company, the Guarantors and (by their acceptance of the
Notes) the Holders, agree to submit to the non-exclusive jurisdiction of any
United States federal or New York State court located in the Borough of
Manhattan, in The City of New York in any action or proceeding arising out of or
relating to this Indenture or the Notes.
The Company, the Guarantors and the Trustee hereby knowingly,
voluntarily and intentionally waive any right they may have to a trial by jury
in respect of any litigation based upon, or arising out of, under or in
connection with, this Indenture or the Notes or any course of conduct, course of
dealing, statements (whether oral or written) or actions of the Company, the
Guarantors or the Trustee relating thereto. The Company and the Guarantors each
acknowledge and agrees that it has received full and sufficient consideration
for this provision waiving trial by jury and that this provision is a material
inducement for the Company and the Guarantors entering into this Indenture.
SECTION 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Parent Guarantor, the Company or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 13.10. SUCCESSORS.
All covenants and agreements of the Company in this Indenture
and the Notes shall bind its successors. All covenants and agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 13.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 13.12. COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.14. QUALIFICATION OF THIS INDENTURE.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of any Registration Rights Agreements
and shall pay all reasonable costs and expenses (including attorneys' fees and
expenses for the Company, the Trustee and the Holders) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification of
this Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
[Signatures on following page]
78
SIGNATURES
Dated as of May 21, 2003.
COMPANY:
MEDEX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial
Officer and Treasurer
PARENT GUARANTOR:
MEDVEST HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial
Officer and Treasurer
SUBSIDIARY GUARANTORS:
MEDEX MEDICAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial
Officer and Treasurer
MEDEX CARDIO-PULMONARY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial
Officer and Treasurer
79
TRUSTEE:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
80
EXHIBIT A-1
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(Face of Note)
8-7/8% SENIOR SUBORDINATED NOTES DUE 2013
CUSIP ____________
NO. _____ $____________
MEDEX, INC.
promises to pay to CEDE & CO., INC. or its registered assigns, the principal sum
of ___________________ Dollars ($______________) on May 15, 2013.
Interest Payment Dates: May 15 and November 15, commencing November 15, 2003.
Record Dates: May 1 and November 1.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed by its duly authorized officer.
MEDEX, INC.
By:
--------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------------------
Authorized Signatory
Dated: May ____, 2003
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(Back of Note)
8-7/8% SENIOR SUBORDINATED NOTES DUE 2013
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
INDENTURE]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Medex, Inc., an Ohio corporation (the "COMPANY"),
promises to pay interest (as defined in the Indenture) on the principal amount
of this Note at 8-7/8% per annum until maturity and shall pay Additional
Interest, if any, as provided in the Registration Rights Agreement relating to
these Notes. The Company shall pay interest semi-annually in arrears in cash on
May 15 and November 15 of each year, or if any such day is not a Business Day,
on the next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest
on the Notes shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from May 21, 2003; PROVIDED, HOWEVER,
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; PROVIDED, FURTHER, that the first Interest
Payment Date shall be November 15, 2003. The Company shall (to the extent that
it may lawfully do so) pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time at a rate that is 1% per annum in excess of the interest rate
then in effect under the Indenture and this Note; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods), from time to time at the same rate to the extent lawful. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on May 1 or
November 1 preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders
at their addresses set forth in the Security Register; PROVIDED, HOWEVER, that
payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest and premium, if any, on, all Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company, Parent Guarantor or any of their Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture,
dated as of May 21, 2003 ("INDENTURE"), among the Company, the Parent Guarantor,
the Subsidiary Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) At any time before May 15, 2006, the Company may on one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
(including Additional Notes) issued under this Indenture at a
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redemption price of 108.875 % of the principal amount thereof, plus accrued and
unpaid interest to the redemption date, with the net cash proceeds of any Equity
Offering; PROVIDED, HOWEVER, that (1) at least 65% of the original aggregate
principal amount of Notes issued under this Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held by the
Parent Guarantor and its Subsidiaries); and (2) the redemption occurs within 90
days of the date of the closing of such Equity Offering.
(b) Except pursuant to the preceding paragraph, the Notes
shall not be redeemable at the Company's option prior to May 15, 2008.
(c) On or after May 15, 2008, the Company may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest on the Notes redeemed, to the applicable
redemption date, if redeemed during the twelve-month period beginning on May 15
of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008......................................... 104.438%
2009......................................... 102.958%
2010......................................... 101.479%
2011 and thereafter.......................... 100.000%
(d) Any prepayment pursuant to this paragraph shall be made
pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 4.12 and
4.17 of the Indenture, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company
shall, within 30 days of a Change of Control, make an offer pursuant to the
procedures set forth in Section 3.09 of the Indenture, to repurchase the Notes
on the date specified in such notice, which date shall be no earlier than 30
days and no later than 90 days from the date of such Change of Control. Each
Holder shall have the right to accept such offer and require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple of $1,000)
of such Holder's Notes pursuant to the Change of Control Offer at a purchase
price, in cash, equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest on the Notes repurchased to the
Purchase Date.
(b) If the Company or any Restricted Subsidiary consummates
any Asset Sales, the Company shall not be required to apply any Net Proceeds to
repurchase Notes in accordance with the Indenture until the aggregate Excess
Proceeds from all Asset Sales following the date the Notes are first issued
exceeds $5.0 million. Thereafter, the Company shall make an Asset Sale Offer to
all Holders of Notes and if the Company is required to do so under the terms of
any other Indebtedness that ranks equally in right of payment with the Notes and
the terms of which are PARI PASSU with the Notes, such other Indebtedness on a
pro rata basis with the Notes, that may be purchased out of the Excess Proceeds.
The offer price shall be in cash equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest thereon, if any, to the date of purchase
in accordance with the terms of the Indenture. To the extent that the aggregate
amount of Notes and other Indebtedness tendered under such Asset Sale Offer is
less than the Excess Proceeds, any remaining Excess Proceeds may be used for any
purpose not otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds available for purchases of such Notes, the Trustee shall select the
Notes to be purchased in the manner set forth in Section 3.02 of the Indenture.
8. NOTICE OF REDEMPTION. Notices of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000, unless all of
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the Notes held by a Holder are to be redeemed. On and after the redemption date
interest shall cease to accrue on Notes or portions thereof called for
redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. This Note shall represent the aggregate principal amount of outstanding
Notes from time to time endorsed hereon and the aggregate principal amount of
Notes represented hereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Company and the Trustee may amend or supplement the Indenture or the Notes
with the consent of the Holders of at least a majority in principal amount of
the Notes, including Additional Notes, if any then outstanding, voting as a
single class (including consents obtained in connection with a purchase of or
tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and
6.07 of the Indenture, any existing Default or Event of Default (except a
continuing Default or Event of Default (i) in the payment of principal, premium,
if any, interest, if any, on the Notes and (ii) in respect of a covenant or
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment)
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in principal amount of
the Notes, including Additional Notes, if any, then outstanding voting as a
single class (including consents obtained in connection with a purchase of or
tender offer or Exchange Offer for the Notes). Without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture or the
Notes to (a) cure any ambiguity, defect or inconsistency; (b) provide for
uncertificated Notes in addition to or in place of certificated Notes (PROVIDED
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code); (c) provide for the
assumption of the Obligations of the Company to Holders in the case of a merger,
consolidation or sale of all or substantially all of the assets of the Company;
(d) make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under the Indenture
of any such Holder; (e) provide for or confirm the issuance of Additional Notes
otherwise permitted to be incurred by this Indenture; or (f) comply with
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA.
12. DEFAULTS AND REMEDIES. Each of the following constitutes an
Event of Default with respect to the Notes: (i) default for 30 days in the
payment when due of interest, if any, on the Notes (whether or not prohibited by
the Subordination provisions of the Indenture); (ii) default in payment when due
of the principal of or premium, if any, on the Notes (whether or not prohibited
by the Subordination provisions of the Indenture); (iii) failure by the Company
or any Restricted Subsidiary for 30 days after notice to comply with the
provisions of Section 4.09 or 4.10 of the Indenture; (iv) failure by the Parent
Guarantor, the Company or any Restricted Subsidiary to comply with the
provisions of Sections 4.12, 4.17 or 5.01 of the Indenture; (v) failure by the
Company or any Restricted Subsidiary for 60 days after notice to comply with any
of its other agreements in the Indenture or the Notes; (vi) a default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any Restricted Subsidiary (or the payment of which is guaranteed by
the Company or any Restricted Subsidiary) whether such Indebtedness or guarantee
now exists, or is created after the date of the Indenture, if that default: (A)
is caused by a failure to pay principal of, or interest or premium, if any, on
such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default"); or (B) results
in the acceleration of such Indebtedness prior to its express maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the
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maturity of which has been so accelerated, aggregates $7.5 million or more;
(vii) failure by the Company or any Restricted Subsidiary to pay final judgments
aggregating in excess of $7.5 million, which judgments are not paid, discharged
or stayed for a period of 60 days; (viii) except as permitted by the Indenture,
any guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its guarantee; and (ix) certain events of
bankruptcy, insolvency or reorganization affecting the Company, Parent Guarantor
or any Restricted Subsidiary that would constitute a Significant Subsidiary or
any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, as set forth in the Indenture.
If any Event of Default (other than the Events of Default arising from
certain events of bankruptcy or insolvency) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency described in the Indenture, all
outstanding Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in the interests of the Holders. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default (i) in the payment
of the principal of, or interest on, the Notes and (ii) in respect of a covenant
or provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations,
the Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or of any
Guarantor, as such, shall have any liability for any Obligations of the Company
or any Guarantor under the Indenture, the Notes, the guarantees or for any claim
based on, in respect of, or by reason of, such Obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes that are Initial Notes shall have all the rights set forth in
the Registration Rights Agreement, dated as of May 21, 2003, among the Company,
the Parent Guarantor, the Subsidiary Guarantors and the parties named on the
signature pages thereto or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes shall have the rights
set forth in one or more Registration Rights Agreements, if any, among the
Company and the other parties thereto, relating to rights given by the Company
to the purchasers of such Additional Notes.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has
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directed the Trustee to use CUSIP numbers in notices of redemption or notices of
Offers to Purchase as a convenience to Holders. No representation is made as to
the correctness of such numbers either as printed on the Notes or as contained
in any notice of redemption or notice of an Offer to Purchase and reliance may
be placed only on the other identification numbers printed thereon and any such
redemption or Offer to Purchase shall not be affected by any defect in or
omission of such numbers.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to: Medex, Inc.,
0000 Xxxxx-Xxxxx Xxxx, Xxxxxx, Xxxx 00000, Attention: Corporate Secretary.
19. GOVERNING LAW. The internal law of the State of New York shall
govern and be used to construe this Note without giving effect to applicable
principals of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.12 or 4.17 of the Indenture, check the box below:
/ / Section 4.12
/ / Section 4.17
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 4.12 or Section 4.17 of the Indenture, state the amount you
elect to have purchased: $_____________________
Date: Your Signature:
------------------ ------------------------------
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
--------------------------------------------------
SIGNATURE GUARANTEE:
----------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or other tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:
--------------
Your Signature:
---------------------------------
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:
-----------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- --------- --------------
X-0-00
XXXXXXX X-0
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(Face of Regulation S Temporary Global Note)
8-7/8% SENIOR SUBORDINATED NOTES DUE 2013
CUSIP _____________
NO. _____ $_____________
MEDEX, INC.
promises to pay to CEDE & CO., INC. or its registered assigns, the principal sum
of _________________ Dollars ($______________) on May 15, 2013.
Interest Payment Dates: May 15 and November 15, commencing November 15, 2003.
Record Dates: May 1 and November 1
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed by its duly authorized officer.
MEDEX, INC.
By:
--------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------------------------
Authorized Signatory
Dated: ________________, 2003
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(Back of Regulation S Temporary Global Note)
8-7/8% SENIOR SUBORDINATED NOTES DUE 2013
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE TERMS OF THE
INDENTURE]
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Medex, Inc., an Ohio corporation (the "COMPANY"),
promises to pay interest (as defined in the Indenture) on the principal amount
of this Note at [ ]% per annum until maturity and shall pay Additional Interest,
if any, as provided in the Registration Rights Agreement relating to these
Notes. The Company shall pay interest semi-annually in arrears in cash on May 15
and November 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on the
Notes shall accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from May 21, 2003; PROVIDED, HOWEVER, that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; PROVIDED, FURTHER, that the first Interest
Payment Date shall be November 15, 2003. The Company shall (to the extent that
it may lawfully do so) pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time at a rate that is 1% per annum in excess of the interest rate
then in effect under the Indenture and this Note; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods), from time to time at the same rate to the extent lawful. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on May 1 or
November 1 preceding the Interest Payment Date, even if such Notes are cancelled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium, if any, and interest at the
office or agency of the Company maintained for such purpose, or, at the option
of the Company, payment of interest may be made by check mailed to the Holders
at their addresses set forth in the Security Register; PROVIDED, HOWEVER, that
payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest and premium, if any, on, all Global Notes
and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company, Parent Guarantor or any of their Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture,
dated as of May 21, 2003 ("INDENTURE"), among the Company, the Parent Guarantor,
the Subsidiary Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this
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Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(e) At any time before May 15, 2006, the Company may on one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
(including Additional Notes) issued under this Indenture at a redemption price
of 108.875% of the principal amount thereof, plus accrued and unpaid interest to
the redemption date, with the net cash proceeds of any Equity Offering;
PROVIDED, HOWEVER, that (1) at least 65% of the original aggregate principal
amount of Notes issued under this Indenture remains outstanding immediately
after the occurrence of such redemption (excluding Notes held by the Parent
Guarantor and its Subsidiaries); and (2) the redemption occurs within 90 days of
the date of the closing of such Equity Offering.
(f) Except pursuant to the preceding paragraph, the Notes
shall not be redeemable at the Company's option prior to May 15, 2008.
(g) On or after May 15, 2008, the Company may redeem all or a
part of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest on the Notes redeemed, to the applicable
redemption date, if redeemed during the twelve-month period beginning on May 15
of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008............................................ 104.438%
2009............................................ 102.958%
2010............................................ 101.479%
2011 and thereafter............................. 100.000%
(h) Any prepayment pursuant to this paragraph shall be made
pursuant to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. Except as set forth in Sections 4.12 and
4.17 of the Indenture, the Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, the Company
shall, within 30 days of a Change of Control, make an offer pursuant to the
procedures set forth in Section 3.09 of the Indenture, to repurchase the Notes
on the date specified in such notice, which date shall be no earlier than 30
days and no later than 90 days from the date of such Change of Control. Each
Holder shall have the right to accept such offer and require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple of $1,000)
of such Holder's Notes pursuant to the Change of Control Offer at a purchase
price, in cash, equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest on the Notes repurchased to the
Purchase Date.
(b) If the Company or any Restricted Subsidiary consummates
any Asset Sales, the Company shall not be required to apply any Net Proceeds to
repurchase Notes in accordance with the Indenture until the aggregate Excess
Proceeds from all Asset Sales following the date the Notes are first issued
exceeds $5.0 million. Thereafter, the Company shall make an Asset Sale Offer to
all Holders of Notes and if the Company is required to do so under the terms of
any other Indebtedness that ranks equally in right of payment with the Notes and
the terms of which are PARI PASSU with the Notes, such other Indebtedness on a
pro rata basis with the Notes, that may be purchased out of the Excess Proceeds.
The offer price shall be in cash equal to 100% of the principal amount of the
Notes plus accrued and unpaid interest thereon, if any, to the date of purchase
in accordance with the terms of the Indenture. To the extent that the aggregate
amount of Notes and other Indebtedness tendered under such Asset Sale Offer is
less than the Excess Proceeds, any remaining Excess Proceeds may be used for any
purpose not otherwise
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prohibited by the Indenture. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds available
for purchases of such Notes, the Trustee shall select the Notes to be purchased
in the manner set forth in Section 3.02 of the Indenture.
8. NOTICE OF REDEMPTION. Notices of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in integral
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest shall cease to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. This Note shall represent the aggregate principal amount of outstanding
Notes from time to time endorsed hereon and the aggregate principal amount of
Notes represented hereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Company and the Trustee may amend or supplement the Indenture or the Notes
with the consent of the Holders of at least a majority in principal amount of
the Notes, including Additional Notes, if any then outstanding, voting as a
single class (including consents obtained in connection with a purchase of or
tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and
6.07 of the Indenture, any existing Default or Event of Default (except a
continuing Default or Event of Default (i) in the payment of principal, premium,
if any, interest, if any, on the Notes and (ii) in respect of a covenant or
provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment)
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in principal amount of
the Notes, including Additional Notes, if any, then outstanding voting as a
single class (including consents obtained in connection with a purchase of or
tender offer or Exchange Offer for the Notes). Without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture or the
Notes to (a) cure any ambiguity, defect or inconsistency; (b) provide for
uncertificated Notes in addition to or in place of certificated Notes (PROVIDED
that the uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Notes
are described in Section 163(f)(2)(B) of the Code); (c) provide for the
assumption of the Obligations of the Company to Holders in the case of a merger,
consolidation or sale of all or substantially all of the assets of the Company;
(d) make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under the Indenture
of any such Holder; (e) provide for or confirm the issuance of Additional Notes
otherwise permitted to be incurred by this Indenture; or (f) comply with
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA.
12. DEFAULTS AND REMEDIES. Each of the following constitutes an
Event of Default with respect to the Notes: (i) default for 30 days in the
payment when due of interest, if any, on the Notes (whether or not prohibited by
the Subordination provisions of the Indenture); (ii) default in payment when due
of the principal of or premium, if any, on the Notes (whether or not prohibited
by the Subordination provisions of the Indenture); (iii) failure by the Company
or any Restricted Subsidiary for 30 days after notice to comply with the
provisions of Section 4.09 or 4.10 of the Indenture; (iv) failure by the Parent
Guarantor, the Company or any Restricted Subsidiary to comply with the
provisions of Sections 4.12, 4.17 or 5.01 of the Indenture; (v) failure by the
Company or any Restricted Subsidiary for 60 days after notice to comply with any
of its other agreements in the Indenture or the Notes; (vi) a default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or
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evidenced any Indebtedness for money borrowed by the Company or any Restricted
Subsidiary (or the payment of which is guaranteed by the Company or any
Restricted Subsidiary) whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, if that default: (A) is caused by a
failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default"); or (B) results
in the acceleration of such Indebtedness prior to its express maturity, and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$7.5 million or more; (vii) failure by the Company or any Restricted Subsidiary
to pay final judgments aggregating in excess of $7.5 million, which judgments
are not paid, discharged or stayed for a period of 60 days; (viii) except as
permitted by the Indenture, any guarantee shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect or any Guarantor, or any Person acting on behalf of any
Guarantor, shall deny or disaffirm its obligations under its guarantee; and (ix)
certain events of bankruptcy, insolvency or reorganization affecting the
Company, Parent Guarantor or any Restricted Subsidiary that would constitute a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, as set forth in the
Indenture.
If any Event of Default (other than the Events of Default arising from
certain events of bankruptcy or insolvency) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency described in the Indenture, all
outstanding Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in the interests of the Holders. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default (i) in the payment
of the principal of, or interest on, the Notes and (ii) in respect of a covenant
or provision which under the Indenture cannot be modified or amended without the
consent of the Holder of each Note affected by such modification or amendment.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations,
the Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder of the Company or of any
Guarantor, as such, shall have any liability for any Obligations of the Company
or any Guarantor under the Indenture, the Notes, the guarantees or for any claim
based on, in respect of, or by reason of, such Obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes that are Initial Notes shall have all the rights set forth in
the Registration Rights Agreement, dated as of May 21, 2003, among the Company,
the Parent Guarantor, the Subsidiary Guarantors and
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the parties named on the signature pages thereto or, in the case of Additional
Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall
have the rights set forth in one or more Registration Rights Agreements, if any,
among the Company and the other parties thereto, relating to rights given by the
Company to the purchasers of such Additional Notes.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption or notices of Offers to Purchase as a
convenience to Holders. No representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption or notice of an Offer to Purchase and reliance may be placed only on
the other identification numbers printed thereon and any such redemption or
Offer to Purchase shall not be affected by any defect in or omission of such
numbers.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to: Medex, Inc.,
0000 Xxxxx-Xxxxx Xxxx, Xxxxxx, Xxxx 00000, Attention: Corporate Secretary.
19. GOVERNING LAW. The internal law of the State of New York shall
govern and be used to construe this Note without giving effect to applicable
principals of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.12 or 4.17 of the Indenture, check the box below:
/ / Section 4.12
/ / Section 4.17
If you want to elect to have only part of this Note purchased by the Company
pursuant to Section 4.12 or Section 4.17 of the Indenture, state the amount you
elect to have purchased: $_____________________
Date: Your Signature:
------------------ --------------------------------
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:
-----------------------------------------------
SIGNATURE GUARANTEE:
----------------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or other tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
as agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:
--------------
Your Signature:
---------------------------------
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:
-----------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
A-2-9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized signatory
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- --------- --------------
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Medex, Inc.
0000 Xxxxx-Xxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: General Counsel
The Bank of New York
000 Xxxxxxx Xxxxxx 0X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Facsimile No.: (000) 000-0000
Re: 8-7/8% Senior Subordinated Notes due 2013
-----------------------------------------
Reference is hereby made to the Indenture, dated as of
May 21, 2003 (the "INDENTURE"), among Medex, Inc., as issuer (the "COMPANY"),
the Guarantors party thereto and The Bank of New York, as Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
___________________, (the "TRANSFEROR") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"TRANSFER"), to ___________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / Check if Transferee will take delivery of a
beneficial interest in the 144A Global Note or a Definitive Note Pursuant to
Rule 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the U.S. Securities Act of 1933, as amended (the "SECURITIES
ACT"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2. / / Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Definitive Note
pursuant to Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no
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directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(a) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Distribution Compliance Period, the transfer
is not being made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note, the Temporary Regulation S Global Note and/or the Definitive Note
and in the Indenture and the Securities Act.
3. / / Check and complete if Transferee will take delivery
of a Definitive Note pursuant to any provision of the Securities Act other than
Rule 144A or Regulation S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) / / such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the
Company, Parent Guarantor or a Subsidiary of either thereof;
or
(c) / / such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act.
4. / / Check if Transferee will take delivery of a
beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S.
(i) The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any State of the United
States and
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(ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes or Restricted Definitive Notes
and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
---------------------------------------------
[Insert Name of Transferor]
By:
------------------------------------------
Name:
Title:
Dated:
-------------------
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP _________), or
(ii) / / Regulation S Global Note (CUSIP _________), or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a), (b) OR (c)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP _________), or
(ii) / / Regulation S Global Note (CUSIP _________), or
(iii) / / Unrestricted Global Note (CUSIP _________); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Medex, Inc.
0000 Xxxxx-Xxxxx Xxxx
Xxxxxx, Xxxx 00000
Attention: General Counsel
The Bank of New York
000 Xxxxxxx Xxxxxx 0X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Facsimile No.: (000) 000-0000
Re: 8-7/8 % Senior Subordinated Notes due 2013
------------------------------------------
Reference is hereby made to the Indenture, dated as of May 21,
2003 (the "INDENTURE"), among Medex, Inc., as issuer (the "COMPANY"), the
Guarantors party thereto and The Bank of New York, as Trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________, (the "OWNER") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the "EXCHANGE").
In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE. In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Note and pursuant to and in accordance with
the U.S. Securities Act of 1933, as amended (the "SECURITIES ACT"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Note and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Owner's Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not
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required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's
Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note,
the Owner hereby certifies (i) the Unrestricted Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes for Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Note
is being acquired for the Owner's own account without transfer. Upon
consummation of the proposed Exchange in accordance with the terms of
the Indenture, the Restricted Definitive Note issued will continue to be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the
Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's Restricted Definitive Note
for a beneficial interest in the [CIRCLE ONE] 144A Global Note,
Regulation S Global Note, with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Definitive Note and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the
relevant Restricted Global Note and in the Indenture and the Securities
Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
---------------------------------------------
[Insert Name of Transferor]
By:
------------------------------------------
Name:
Title:
Dated:
--------------------
C-3
EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, hereby
unconditionally guarantees, to the extent set forth in the Indenture and subject
to the provisions in the Indenture, dated as of May 21, 2003 (the "INDENTURE"),
among Medex, Inc., as issuer (the "Company"), the Guarantors listed on the
signature pages thereto and The Bank of New York, as trustee (the "Trustee"),
(a) the due and punctual payment of the principal of, premium, if any, and
interest, if any, on the Notes, whether at maturity, by acceleration, redemption
or otherwise, the due and punctual payment of interest on overdue principal and
premium, if any, and, to the extent permitted by law, interest, if any, and the
due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee under the Notes and the Indenture, all in accordance with
the terms of the Notes and the Indenture; and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other Obligations, that
the same shall be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at maturity, by acceleration
pursuant to Section 6.02 of the Indenture, redemption or otherwise. The
Obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms of the guarantee. Except to the extent provided in the Indenture,
including Sections 8.02, 8.03 and 10.05 thereof, this guarantee shall not be
discharged except by complete performance of the Obligations contained herein
and in the Indenture. Each Holder of a Note, by accepting the same agrees to and
shall be bound by such provisions. Capitalized terms used herein and not defined
are used herein as so defined in the Indenture.
[Signature page follows]
D-1
[NAME OF GUARANTOR]
By:
--------------------------
Name:
Title:
D-2
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE......................................................1
Section 1.01. Definitions..............................................................................1
Section 1.02. Other Definitions.......................................................................17
Section 1.03. Incorporation by Reference of Trust Indenture Act.......................................17
Section 1.04. Rules of Construction...................................................................17
ARTICLE 2. THE NOTES......................................................................................18
Section 2.01. Form and Dating.........................................................................18
Section 2.02. Execution and Authentication............................................................19
Section 2.03. Registrar and Paying Agent..............................................................19
Section 2.04. Paying Agent to Hold Money in Trust.....................................................20
Section 2.05. Holder Lists............................................................................20
Section 2.06. Transfer and Exchange...................................................................20
Section 2.07. Replacement Notes.......................................................................30
Section 2.08. Outstanding Notes.......................................................................31
Section 2.09. Treasury Notes..........................................................................31
Section 2.10. Temporary Notes.........................................................................31
Section 2.11. Cancellation............................................................................32
Section 2.12. Defaulted Interest......................................................................32
Section 2.13. CUSIP or ISIN Numbers...................................................................32
Section 2.14. Additional Interest.....................................................................32
Section 2.15. Issuance of Additional Notes............................................................32
Section 2.16. Record Date.............................................................................33
ARTICLE 3. REDEMPTION AND PREPAYMENT......................................................................33
Section 3.01. Notices to Trustee......................................................................33
Section 3.02. Selection of Notes to Be Redeemed.......................................................33
Section 3.03. Notice of Redemption....................................................................34
Section 3.04. Effect of Notice of Redemption..........................................................34
Section 3.05. Deposit of Redemption Price.............................................................34
Section 3.06. Notes Redeemed in Part..................................................................35
Section 3.07. Optional Redemption.....................................................................35
Section 3.08. Mandatory Redemption....................................................................35
Section 3.09. Offers To Purchase......................................................................36
ARTICLE 4. COVENANTS......................................................................................38
Section 4.01. Payment of Notes........................................................................38
Section 4.02. Maintenance of Office or Agency.........................................................38
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.03. Reports.................................................................................38
Section 4.04. Compliance Certificate..................................................................39
Section 4.05. Taxes...................................................................................40
Section 4.06. Stay, Extension and Usury Laws..........................................................40
Section 4.07. Corporate Existence.....................................................................40
Section 4.08. Payments for Consent....................................................................40
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock..............................40
Section 4.10. Restricted Payments.....................................................................42
Section 4.11. Liens...................................................................................45
Section 4.12. Asset Sales.............................................................................45
Section 4.13. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries...............47
Section 4.14. Transactions with Affiliates............................................................48
Section 4.15. Business Activities.....................................................................49
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.................................49
Section 4.17. Repurchase at the Option of Holders Upon a Change of Control............................49
Section 4.18. Additional Guarantees...................................................................49
ARTICLE 5. SUCCESSORS.....................................................................................50
Section 5.01. Merger, Consolidation or Sale of Assets.................................................50
Section 5.02. Successor Corporation Substituted.......................................................51
ARTICLE 6. DEFAULTS AND REMEDIES..........................................................................51
Section 6.01. Events of Default.......................................................................51
Section 6.02. Acceleration............................................................................53
Section 6.03. Other Remedies..........................................................................54
Section 6.04. Waiver of Past Defaults.................................................................54
Section 6.05. Control by Majority.....................................................................54
Section 6.06. Limitation on Suits.....................................................................54
Section 6.07. Rights of Holders to Receive Payment....................................................55
Section 6.08. Collection Suit by Trustee..............................................................55
Section 6.09. Trustee May File Proofs of Claim........................................................55
Section 6.10. Priorities..............................................................................55
Section 6.11. Undertaking for Costs...................................................................56
ARTICLE 7. TRUSTEE........................................................................................56
Section 7.01. Duties of Trustee.......................................................................56
Section 7.02. Rights of Trustee.......................................................................57
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.03. Individual Rights of Trustee............................................................58
Section 7.04. Trustee's Disclaimer....................................................................58
Section 7.05. Notice of Defaults......................................................................58
Section 7.06. Reports by Trustee to Holders...........................................................58
Section 7.07. Compensation and Indemnity..............................................................58
Section 7.08. Replacement of Trustee..................................................................59
Section 7.09. Successor Trustee by Merger, etc........................................................60
Section 7.10. Eligibility; Disqualification...........................................................60
Section 7.11. Preferential Collection of Claims Against Company.......................................61
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.......................................................61
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance................................61
Section 8.02. Legal Defeasance and Discharge..........................................................61
Section 8.03. Covenant Defeasance.....................................................................61
Section 8.04. Conditions to Legal or Covenant Defeasance..............................................62
Section 8.05. Deposited Cash and Government Securities to be Held in Trust; Other
Miscellaneous Provisions................................................................63
Section 8.06. Repayment to Company....................................................................63
Section 8.07. Reinstatement...........................................................................63
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER...............................................................64
Section 9.01. Without Consent of Holders of Notes.....................................................64
Section 9.02. With Consent of Holders of Notes........................................................64
Section 9.03. Compliance with Trust Indenture Act.....................................................65
Section 9.04. Revocation and Effect of Consents.......................................................65
Section 9.05. Notation on or Exchange of Notes........................................................66
Section 9.06. Trustee to Sign Amendments, etc.........................................................66
ARTICLE 10. GUARANTEES.....................................................................................66
Section 10.01. Guarantee...............................................................................66
Section 10.02. Limitation on Guarantor Liability.......................................................67
Section 10.03. Execution and Delivery of Guarantee.....................................................68
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms......................................68
Section 10.05. Releases Following Sale of Assets.......................................................69
ARTICLE 11. SUBORDINATION..................................................................................69
Section 11.01. Agreement to Subordinate................................................................69
Section 11.02. Liquidation; Dissolution; Bankruptcy....................................................69
Section 11.03. Default on Designated Senior Debt.......................................................70
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 11.04. Acceleration of Notes...................................................................71
Section 11.05. When Distribution Must Be Paid Over.....................................................71
Section 11.06. Notice By The Company...................................................................71
Section 11.07. Subrogation.............................................................................71
Section 11.08. Relative Rights.........................................................................71
Section 11.09. Subordination May Not Be Impaired By The Company........................................72
Section 11.10. Distribution Or Notice To Representative................................................72
Section 11.11. Rights Of Trustee And Paying Agent......................................................72
Section 11.12. Authorization To Effect Subordination...................................................73
Section 11.13. Trust Moneys Not Subordinated...........................................................73
Section 11.14. Payment and Distribution................................................................73
Section 11.15. No Claims...............................................................................73
Section 11.16. Acknowledgement of Holders..............................................................73
ARTICLE 12. SATISFACTION AND DISCHARGE.....................................................................74
Section 12.01. Satisfaction and Discharge..............................................................74
Section 12.02. Deposited Cash and Government Securities to be Held in Trust; Other
Miscellaneous Provisions................................................................74
Section 12.03. Repayment to Company....................................................................75
ARTICLE 13. MISCELLANEOUS..................................................................................75
Section 13.01. Trust Indenture Act Controls............................................................75
Section 13.02. Notices.................................................................................75
Section 13.03. Communication by Holders of Notes with Other Holders of Notes...........................76
Section 13.04. Certificate and Opinion as to Conditions Precedent......................................76
Section 13.05. Statements Required in Certificate or Opinion...........................................76
Section 13.06. Rules by Trustee and Agents.............................................................77
Section 13.07. No Personal Liability of Directors, Officers, Employees and Shareholders................77
Section 13.08. Governing Law...........................................................................77
Section 13.09. No Adverse Interpretation of Other Agreements...........................................77
Section 13.10. Successors..............................................................................78
Section 13.11. Severability............................................................................78
Section 13.12. Counterpart Originals...................................................................78
Section 13.13. Table of Contents, Headings, etc........................................................78
Section 13.14. Qualification of this Indenture.........................................................78
iv
CROSS-REFERENCE TABLE
TIA Section Indenture
Reference Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.08, 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06, 7.07
(c) 7.06,
12.02
(d) 7.06
314(a) 4.03, 4.04,
12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
315(a) 7.01
(b) 7.05,
12.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a) (last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
