EXHIBIT 4.15
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XXXXXX SCIENTIFIC INTERNATIONAL INC., as Issuer
8% Senior Subordinated Notes due 2013
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INDENTURE
Dated as of August 20, 2003
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X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1)................................................................ 7.10
(a)(2)................................................................ 7.10
(a)(3)................................................................ N.A.
(a)(4)................................................................ N.A.
(b)................................................................... 7.8; 7.10
(c)................................................................... N.A.
311 (a)................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
312 (a)................................................................... 2.5
(b)................................................................... N.A.
(c)................................................................... N.A.
313 (a)................................................................... 7.6
(b)(1)................................................................ N.A.
(b)(2)................................................................ 7.6
(c)................................................................... 7.6
(d)................................................................... 7.6
314 (a)................................................................... 4.18; 4.19; 13.2
(b)................................................................... N.A.
(c)(1)................................................................ 13.4
(c)(2)................................................................ 13.4
(c)(3)................................................................ N.A.
(d)................................................................... N.A.
(e)................................................................... 13.5
(f)................................................................... 4.19
315 (a)................................................................... 7.1
(b)................................................................... 7.5; 13.2
(c)................................................................... 7.1
(d)................................................................... 7.1
(e)................................................................... 6.11
316 (a)(last sentence).................................................... 13.6
(a)(1)(A)............................................................. 6.5
(a)(1)(B)............................................................. 6.4
(a)(2)................................................................ N.A.
(b)................................................................... 6.7
317 (a)(1)................................................................ 6.8
(a)(2)................................................................ 6.9
(b)................................................................... 2.4
318 (a)................................................................... 13.1
N.A. means Not Applicable
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions..................................................... 1
SECTION 1.2. Other Definitions............................................... 23
SECTION 1.3. Incorporation by Reference of Trust Indenture Act............... 24
SECTION 1.4. Rules of Construction........................................... 25
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating................................................. 25
SECTION 2.2. Execution and Authentication.................................... 26
SECTION 2.3. Registrar and Paying Agent...................................... 27
SECTION 2.4. Paying Agent to Hold Money in Trust............................. 27
SECTION 2.5. Securityholder Lists............................................ 28
SECTION 2.6. Transfer and Exchange........................................... 28
SECTION 2.7. Replacement Securities.......................................... 33
SECTION 2.8. Outstanding Securities.......................................... 34
SECTION 2.9. Temporary Securities............................................ 34
SECTION 2.10. Cancellation.................................................... 34
SECTION 2.11. Defaulted Interest.............................................. 35
SECTION 2.12. CUSIP Numbers................................................... 35
SECTION 2.13. Issuance of Additional Securities............................... 35
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee.............................................. 36
SECTION 3.2. Selection of Securities To be Redeemed.......................... 36
SECTION 3.3. Notice of Redemption............................................ 37
SECTION 3.4. Effect of Notice of Redemption.................................. 37
SECTION 3.5. Deposit Of Redemption Price..................................... 38
SECTION 3.6. Securities Redeemed in Part..................................... 38
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ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities........................................... 38
SECTION 4.2. Limitation on Liens............................................. 39
SECTION 4.3. Limitation on Incurrence of Additional Indebtedness............. 39
SECTION 4.4. Limitation on Restricted Payments............................... 40
SECTION 4.5. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries...................................... 42
SECTION 4.6. Limitation on Asset Sales....................................... 44
SECTION 4.7. Limitation on Transactions with Affiliates...................... 46
SECTION 4.8. Change of Control............................................... 47
SECTION 4.9. Prohibition on Incurrence of Senior Subordinated Debt........... 49
SECTION 4.10. Limitation on Preferred Stock of Subsidiaries................... 49
SECTION 4.11. Limitation on Guarantees by Restricted Subsidiaries............. 49
SECTION 4.12. Conduct of Business............................................. 49
SECTION 4.13. Maintenance of Office or Agency................................. 50
SECTION 4.14. Corporate Existence............................................. 50
SECTION 4.15. Payment of Taxes and Other Claims............................... 50
SECTION 4.16. Maintenance of Properties and Insurance......................... 50
SECTION 4.17. Compliance With Laws............................................ 51
SECTION 4.18. Additional Information.......................................... 51
SECTION 4.19. Further Instruments and Acts.................................... 51
ARTICLE V
SUCCESSOR COMPANY
SECTION 5.1. When Company May Merge or Transfer Assets....................... 51
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default............................................... 53
SECTION 6.2. Acceleration.................................................... 55
SECTION 6.3. Other Remedies.................................................. 55
SECTION 6.4. Waiver of Past Defaults......................................... 55
SECTION 6.5. Control by Majority............................................. 56
SECTION 6.6. Limitation on Suits............................................. 56
SECTION 6.7. Rights of Holders to Receive Payment............................ 57
SECTION 6.8. Collection Suit by Trustee...................................... 57
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SECTION 6.9. Trustee May File Proofs of Claim................................ 57
SECTION 6.10. Priorities...................................................... 57
SECTION 6.11. Undertaking for Costs........................................... 58
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee............................................... 58
SECTION 7.2. Rights of Trustee............................................... 59
SECTION 7.3. Individual Rights of Trustee.................................... 59
SECTION 7.4. Trustee's Disclaimer............................................ 59
SECTION 7.5. Notice of Defaults.............................................. 60
SECTION 7.6. Reports by Trustee to Holders................................... 60
SECTION 7.7. Compensation and Indemnity...................................... 60
SECTION 7.8. Replacement of Trustee.......................................... 61
SECTION 7.9. Successor Trustee by Merger..................................... 62
SECTION 7.10. Eligibility; Disqualification................................... 62
SECTION 7.11. Preferential Collection of Claims Against Company............... 62
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities............................ 62
SECTION 8.2. Legal Defeasance and Covenant Defeasance........................ 64
SECTION 8.3. Conditions to Defeasance........................................ 65
SECTION 8.4. Application of Trust Money...................................... 66
SECTION 8.5. Repayment to Company............................................ 67
SECTION 8.6. Reinstatement................................................... 67
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders...................................... 68
SECTION 9.2. With Consent of Holders......................................... 69
SECTION 9.3. Compliance With Trust Indenture Act............................. 70
SECTION 9.4. Revocation and Effect of Consents and Waivers................... 70
SECTION 9.5. Notation or Exchange of Securities.............................. 71
SECTION 9.6. Trustee to Sign Amendments...................................... 71
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ARTICLE X
SUBORDINATION
SECTION 10.1. Agreement to Subordinate........................................ 71
SECTION 10.2. Liquidation, Dissolution, Bankruptcy............................ 71
SECTION 10.3. Default on Senior Indebtedness.................................. 72
SECTION 10.4. Acceleration of Payment of Securities........................... 73
SECTION 10.5. When Distribution Must Be Paid Over............................. 73
SECTION 10.6. Subrogation..................................................... 73
SECTION 10.7. Relative Rights................................................. 73
SECTION 10.8. Subordination May Not Be Impaired by Company.................... 74
SECTION 10.9. Rights of Trustee and Paying Agent.............................. 74
SECTION 10.10. Distribution or Notice to Representative........................ 74
SECTION 10.11. Article X Not To Prevent Events of Default or Limit Right
to Accelerate................................................ 74
SECTION 10.12. Trust Moneys Not Subordinated................................... 74
SECTION 10.13. Trustee Entitled to Rely........................................ 74
SECTION 10.14. Trustee to Effectuate Subordination............................. 75
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness........ 75
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions..................................... 75
ARTICLE XI
[RESERVED]
ARTICLE XII
[RESERVED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls..................................... 76
SECTION 13.2. Notices.......................................................... 76
SECTION 13.3. Communication by Holders With Other Holders...................... 77
SECTION 13.4. Certificate and Opinion As To Conditions Precedent............... 77
SECTION 13.5. Statements Required in Certificate or Opinion.................... 77
SECTION 13.6. When Securities Disregarded...................................... 77
SECTION 13.7. Rules by Trustee, Paying Agent and Registrar..................... 78
SECTION 13.8. Legal Holidays................................................... 78
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SECTION 13.9. Governing Law.................................................... 78
SECTION 13.10. No Recourse Against Others....................................... 78
SECTION 13.11. Successors....................................................... 78
SECTION 13.12. Multiple Originals............................................... 78
SECTION 13.13. Variable Provisions.............................................. 78
SECTION 13.14. Qualification Of Indenture....................................... 78
SECTION 13.15. Table of Contents; Headings...................................... 79
EXHIBITS
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EXHIBIT A FORM OF TRANSFER RESTRICTED SECURITY
EXHIBIT B FORM OF REGISTERED SECURITY
EXHIBIT C FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTORS
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INDENTURE dated as of August 20, 2003, between XXXXXX
SCIENTIFIC INTERNATIONAL INC., a Delaware corporation (as further defined below,
the "Company"), and X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association duly organized and existing under the laws of the United
States, as trustee (the "Trustee").
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of $150,000,000 aggregate principal
amount of the Company's 8% Senior Subordinated Notes due 2013 (the "Initial
Notes") and, if and when issued in exchange for Initial Notes as provided in the
Registration Rights Agreement (as hereinafter defined), the Company's 8% Senior
Subordinated Notes due 2013 (the "Exchange Notes" and, together with the Initial
Notes, the "Original Securities") and, if and when issued, such Additional
Securities (as defined below) that the Company may from time to time choose to
issue under this Indenture. The Initial Notes are being offered and sold by the
Company pursuant to a Purchase Agreement, dated August 6, 2003, among the
Company, X.X. Xxxxxx Securities Inc., Credit Suisse First Boston LLC and Lazard
Freres & Co. LLC (the "Purchase Agreement"). References herein to the
"Securities" shall include the Original Securities and the Additional
Securities. All things necessary to make this Indenture a valid and legally
binding agreement of the Company, in accordance with its terms, have been done,
and the Company has done all things necessary to make the Securities, when
executed by the Company, and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, valid and legally binding obligations
of the Company. Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Securities.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness (i) of a Person or
any of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company, or (ii) assumed in connection with the acquisition of
assets from such Person, in each case whether or not incurred by such Person in
connection with such Person becoming a Restricted Subsidiary of the Company or
such acquisition. Acquired Indebtedness shall be deemed to have been incurred,
with respect to clause (i) of the preceding sentence, on the date such Person
becomes a Restricted Subsidiary of the Company and, with respect to clause (ii)
of the preceding sentence, on the date of consummation of such acquisition of
assets.
"Additional Securities" means, subject to the Company's
compliance with Sections 2.13 and 4.3, 8% Senior Subordinated Notes due 2013
that the Company may issue under this Indenture (substantially in the form of
Exhibit A, in the case of any such Additional Securities issued as Transfer
Restricted Securities, or substantially in the form of Exhibit B, in the case of
Additional Securities issued pursuant to an effective registration statement
under the Securities Act) from time to time after the Issue Date under the terms
of this Indenture (other than
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issuances pursuant to Section 2.6, 2.7, 2.9, 3.6 or 9.5 of this Indenture and
any Exchange Securities issued in respect thereof).
"Affiliate" means a Person who directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, the Company. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Notwithstanding the foregoing, no Person (other than the
Company or any Subsidiary of the Company) in whom a Receivables Entity makes an
Investment in connection with a Qualified Receivables Transaction shall be
deemed to be an Affiliate of the Company or any of its Subsidiaries solely by
reason of such Investment.
"all or substantially all" shall have the meaning given such
phrase in the Revised Model Business Corporation Act.
"Asset Acquisition" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (b) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person which constitute all or substantially all of the assets of such Person,
any division or line of business of such Person or any other properties or
assets of such Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
the Company of (a) any Capital Stock of any Restricted Subsidiary of the
Company; or (b) any other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that Asset Sales shall not include (i) any transaction or
series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $5.0 million, (ii) the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Article V, (iii) the sale or
discount, in each case without recourse, of accounts receivable arising in the
ordinary course of business, but only in connection with the compromise or
collection thereof, (iv) the factoring of accounts receivable arising in the
ordinary course of business pursuant to arrangements customary in the industry,
(v) the licensing of intellectual property, (vi) disposals or replacements of
obsolete equipment in the ordinary course of business, (vii) the sale, lease,
conveyance, disposition or other transfer by the Company or any Restricted
Subsidiary of assets or property in transactions constituting Investments that
are not prohibited under Section 4.4, (viii) sales of accounts receivable and
related assets of the type specified in the definition of "Qualified Receivables
Transaction" to a Receivables Entity, (ix) transfers of accounts
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receivable and related assets of the type specified in the definition of
"Qualified Receivables Transaction" (or a fractional undivided interest therein)
by a Receivables Entity in a Qualified Receivables Transaction and (x) leases or
subleases to third persons not interfering in any material respect with the
business of the Company or any of its Restricted Subsidiaries. For the purposes
of clause (viii), Purchase Money Notes shall be deemed to be cash.
"Bank Indebtedness" means any and all amounts, whether
outstanding on the Issue Date or thereafter incurred, payable under or in
respect of the Credit Facility and any related notes, collateral documents,
letters of credit and guarantees, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary of the Company whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses, indemnities,
reimbursement obligations, guarantees and all other amounts payable thereunder
or in respect thereof.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of corporate stock, including each class of common stock
and preferred stock of such Person and (ii) with respect to any Person that is
not a corporation, any and all partnership or other equity interests of such
Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's; (iii) commercial paper
maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody's; (iv) certificates of deposit or bankers' acceptances (or, with
respect to foreign banks, similar instruments) maturing within one year from the
date of acquisition thereof issued by any bank organized under the laws of the
United States of America or any state thereof or the District of
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Columbia or any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $200 million; (v)
certificates of deposit or bankers' acceptances or similar instruments maturing
within one year from the date of acquisition thereof issued by any foreign bank
that is a lender under the Credit Facility having at the date of acquisition
thereof combined capital and surplus of not less than $500 million; (vi)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) or clause (v) above; and
(vii) investments in money market funds, including, without limitation, the
money market mutual funds or any other mutual fund comprised of allowable
investments for which the Trustee or an affiliate of the Trustee serves as
investment manager, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee or an affiliate of the
Trustee receives fees from such funds for services rendered, (y) the Trustee
charges and collects fees for services rendered pursuant to this Indenture,
which fees are separate from the fees received from such funds, and (z) services
performed for such funds and pursuant to this Indenture may at times duplicate
those provided to such funds by the Trustee or its affiliates, which invest
substantially all their assets in securities of the types described in clauses
(i) through (vi) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons (other than
one or more Permitted Holders) for purposes of Section 13(d) of the Exchange Act
(a "Group"), together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture); (ii) the approval by the
holders of Capital Stock of the Company of any plan or proposal for the
liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture); (iii) any Person or Group
(other than one or more Permitted Holders) shall become the owner, directly or
indirectly, beneficially or of record, of shares representing 50% or more of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company or (iv) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors.
"Change of Control Triggering Event" means the occurrence of a
Change of Control and the failure of the Securities to have a Minimum Rating on
the 30th day after the occurrence of such Change of Control.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Xxxxxx Scientific International Inc., a
Delaware corporation, until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income and
(ii) to the extent Consolidated Net
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Income has been reduced thereby, (A) all income taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period,
(B) Consolidated Interest Expense, (C) Consolidated Non-cash Charges and (D)
cash restructuring or nonrecurring charges, not to exceed $10 million in the
aggregate for all periods after the Issue Date.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof) occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period, (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (including
pro forma adjustments for cost savings ("Cost Savings Adjustments") that the
Company reasonably believes in good faith could have been achieved during the
Four Quarter Period as a result of such acquisition or disposition (provided
that both (A) such cost savings were identified and quantified in an Officers'
Certificate delivered to the Trustee at the time of the consummation of the
acquisition or disposition and (B) with respect to each acquisition or
disposition completed prior to the 90th day preceding such date of
determination, actions were commenced or initiated by the Company within 90 days
of such acquisition or disposition to effect such cost savings identified in
such Officers' Certificate and with respect to any other acquisition or
disposition, such Officers' Certificate sets forth the specific steps to be
taken within the 90 days after such acquisition or disposition to accomplish
such cost savings) attributable to the assets which are the subject of the Asset
Acquisition or Asset Sale during the Four Quarter Period) occurring during the
Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Four Quarter Period and (iii) any Asset Sales or Asset Acquisitions (including
any Consolidated EBITDA (including any Cost Savings Adjustments) attributable to
the assets which are the subject of the asset acquisition or asset sale during
the Four Quarter Period) that have been made by any Person that has become a
Restricted Subsidiary of the Company or has been merged with or into the Company
or any Restricted Subsidiary of the Company during the Four Quarter Period or at
any time subsequent to the last day of the Four Quarter Period and
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on or prior to the Transaction Date that would have constituted Asset Sales or
Asset Acquisitions had such transactions occurred when such Person was a
Restricted Subsidiary of the Company or subsequent to such Person's merger into
the Company, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any Indebtedness or Acquired
Indebtedness in connection therewith) occurred on the first day of the Four
Quarter Period; provided that to the extent that clause (ii) or (iii) of this
sentence requires that pro forma effect be given to an Asset Sale or Asset
Acquisition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the Transaction Date of the Person, or division
or line of business of the Person, that is acquired or disposed for which
financial information is available. If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person,
the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; (2) if interest on any Indebtedness actually incurred on the Transaction
Date may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate, or other rates,
then the interest rate in effect on the Transaction Date will be deemed to have
been in effect during the Four Quarter Period; and (3) notwithstanding clause
(1) above, interest on Indebtedness determined on a fluctuating basis, to the
extent such interest is covered by agreements relating to Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense (excluding amortization or write-off of debt issuance and currency
hedging costs relating to the Perbio Acquisition and the financing therefor or
relating to retired or existing Indebtedness and amortization or write-off of
customary debt issuance costs relating to future Indebtedness incurred in
compliance with this Indenture) plus (ii) the product of (x) the amount of all
dividend payments on any series of Preferred Stock of such Person (other than
dividends, paid in Qualified Capital Stock) times (y) a fraction, the numerator
of which is one and the denominator of which is one minus the then current
effective consolidated Federal, state and local tax rate of such Person
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication, (i) the aggregate of all
cash and non-cash interest expense with respect to all outstanding Indebtedness
of such Person and its Restricted Subsidiaries, including the net costs
associated with Interest Swap Obligations, for such period determined on a
consolidated basis in conformity with GAAP, and (ii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its
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Restricted Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" of the Company means, for any
period, the aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) gains and losses
from Asset Sales (without regard to the $5.0 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto and the related
tax effects according to GAAP, (b) gains and losses due solely to fluctuations
in currency values and the related tax effects according to GAAP, (c) items
classified as extraordinary, unusual or nonrecurring gains and losses (including
without limitation (w) any charge or expense incurred for employee bonuses in
connection with the Perbio Transactions, (x) any fees, expenses and charges
associated with the Perbio Transactions, (y) any adjustment in the book value of
any inventory acquired in connection with the Perbio Acquisition and (z) any
charge or expense associated with the entry into and the initial borrowings
under the Credit Facility and the amended and restated receivables purchase
agreement dated as of February 14, 2003, and the issuance and sale of the
Existing Senior Subordinated Notes on January 14, 2003), and the related tax
effects according to GAAP, (d) the net income (or loss) of any Person acquired
in a pooling of interests transaction accrued prior to the date it becomes a
Restricted Subsidiary of the Company or is merged or consolidated with the
Company or any Restricted Subsidiary of the Company, (e) the net income of any
Restricted Subsidiary of the Company that is not a Subsidiary Guarantor to the
extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of the Company of that income is restricted by contract,
operation of law or otherwise (other than (x) restrictions that have been waived
or otherwise released, (y) restrictions pursuant to the Securities or this
Indenture and (z) restrictions in effect on the Issue Date with respect to a
Restricted Subsidiary of the Company), except that (A) the Company's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in Consolidated Net Income up to the aggregate amount of any dividend
or distribution that was or that could have been made by such Restricted
Subsidiary during such period to the Company or another Restricted Subsidiary of
the Company (subject, in the case of a dividend that could have been made to
another Restricted Subsidiary of the Company, to the limitation contained in
this clause) and (B) the net loss of such Restricted Subsidiary shall be
included to the extent of the proportionate ownership of the Company or any of
its other Restricted Subsidiaries in such Restricted Subsidiary, (f) the net
loss of any Person other than a Restricted Subsidiary of the Company, (g) the
net income of any Person, other than a Restricted Subsidiary of the Company,
except to the extent of cash dividends or distributions paid to the Company or a
Restricted Subsidiary of the Company by such Person unless, in the case of a
Restricted Subsidiary of the Company who receives such dividends or
distributions, such Restricted Subsidiary is subject to clause (e) above, (h)
any one-time non-cash compensation charges, and any non-cash compensation charge
arising from any grant of stock, stock options or other equity-based awards, (i)
all deferred financing costs written off and premiums paid in connection with
any early extinguishment of Indebtedness and (j) any unrealized gains or losses
in respect of Currency Agreements.
-8-
"Consolidated Non-cash Charges" means, with respect to any
Person for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries of the
Company for such period, determined on a consolidated basis in accordance with
GAAP (excluding any such charges which require an accrual of or a reserve for
cash charges for any future period).
"Consolidated Total Assets" means, as of any date of
determination, the total assets shown on the consolidated balance sheet of the
Company and its Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP (and, in the case of any determination relating to any
incurrence of Indebtedness or any Investment, on a pro forma basis including any
property or assets being acquired in connection therewith).
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Issue Date, (ii) was nominated for election or elected
to such Board of Directors with, or whose election to such Board of Directors
was approved by, the affirmative vote of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such nomination or
election or (iii) is any designee of a Permitted Holder or was nominated by a
Permitted Holder or any designees of a Permitted Holder on the Board of
Directors.
"Credit Facility" means the credit agreement dated as of
February 14, 2003, among the Company, the other borrowers party thereto from
time to time, if any, the lenders party thereto from time to time and XX Xxxxxx
Xxxxx Bank, as administrative agent, together with the related documents thereto
(including, without limitation, any guarantee agreements, promissory notes and
collateral documents), in each case as such agreements may be amended,
supplemented or otherwise modified from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid or extended from time to time (whether
with the original agents and lenders or other agents and lenders or otherwise,
and whether provided under the original Credit Facility or one or more other
credit agreements or otherwise) including, without limitation, to increase the
amount of available borrowings thereunder or to add Restricted Subsidiaries as
additional borrowers or guarantors or otherwise.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Designated Noncash Consideration" means any noncash
consideration received by the Company or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officer's Certificate, setting
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forth the basis of the determination by the Board of Directors of the Company of
the fair market value of such noncash consideration.
"Depository" means The Depository Trust Company, its nominees
and their respective successors and assigns, or such other depository
institution hereinafter appointed by the Company.
"Designated Senior Indebtedness" means (i) Bank Indebtedness
and (ii) any other Senior Indebtedness which, at the date of determination, has
an aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof, are committed to lend up to, at least $25
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness or another writing as
"Designated Senior Indebtedness" for purposes of this Indenture.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(other than an event which would constitute a Change of Control Triggering
Event), matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of Control
Triggering Event) on or prior to the final maturity date of the Securities.
"Equity Offering" means a sale of Qualified Capital Stock of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Senior Notes" means any of (i) the Company's
existing 7 1/8% Senior Notes due 2005 issued under the Senior Debt Securities
Indenture dated as of December 18, 1995 and (ii) the Company's existing 2.50%
Convertible Senior Notes due October 1, 2023 issued under the indenture dated as
of July 7, 2003, and any notes issued in exchange therefor under such indenture.
"Existing Senior Subordinated Notes" means any of the
Company's existing 8 1/8% Senior Subordinated Notes due 2012 issued under the
indenture April 24, 2002, and any notes issued in exchange therefor under such
indenture.
"fair market value" means, unless otherwise specified, with
respect to any asset or property, the price which could be negotiated in an
arm's-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair market value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a resolution of the Board of Directors of the Company delivered to
the Trustee.
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"Foreign Subsidiary" means a Restricted Subsidiary of the
Company (i) that is organized in a jurisdiction other than the United States of
America or a state thereof or the District of Columbia and (ii) with respect to
which at least 90% of its sales (as determined in accordance with GAAP) are
generated by operations located in jurisdictions outside the United States of
America.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the Issue Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession.
"guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all obligations under
any title retention agreement (but excluding trade accounts payable arising in
the ordinary course of business), (v) all obligations for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause (viii)
below, (vii) all obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any Lien on any property or asset
of such Person but which obligations are not assumed by such Person, the amount
of such obligation being deemed to be the lesser of the fair market value of
such property or asset or the amount of the obligation so secured, (viii) all
obligations under currency swap agreements and interest swap agreements of such
Person and (ix) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
-11-
its maximum fixed repurchase price, but excluding accrued dividends, if any. For
purposes hereof, (x) the "maximum fixed repurchase price" of any Disqualified
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Disqualified Capital Stock as if such
Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital Stock
and (y) any transfer of accounts receivable or other assets which constitute a
sale for purposes of GAAP shall not constitute Indebtedness hereunder.
"Indenture" means this Indenture as amended or supplemented
from time to time.
"Interest Swap Obligations" means the obligations of any
Person, pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Investment" by any Person in any other Person means, with
respect to any Person, any direct or indirect loan or other extension of credit
(including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, such other Person.
"Investment" shall exclude extensions of trade credit by the Company and its
Restricted Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the case
may be, and any guarantees. For the purposes of Section 4.4, (i) the Company
shall be deemed to have made an "Investment" equal to the fair market value of
the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary and the aggregate amount of
Investments made since the Issue Date shall exclude (to the extent the
designation as an Unrestricted Subsidiary was included as a Restricted Payment)
the fair market value of the net assets of any Unrestricted Subsidiary at the
time that such Unrestricted Subsidiary is designated a Restricted Subsidiary not
to exceed the amount of the Investment deemed made at the date of designation
thereof as an Unrestricted Subsidiary, and (ii) the amount of any Investment
shall be the original cost of such Investment plus the cost of all additional
Investments by the Company or any of its Restricted Subsidiaries, without any
adjustments for increases or decreases in value, or write-ups, writedowns or
write-offs with respect to such Investment, reduced by the payment of dividends
or distributions (including tax sharing payments) in connection with such
Investment or any other amounts received in respect of such Investment; provided
that no such payment of dividends or distributions or receipt of any such other
amounts shall reduce the amount of any Investment if such payment of dividends
or distributions or receipt of any such amounts would be included in
Consolidated Net Income.
-12-
"Investors" means (i) Xxxxxx X. Xxx Company, a sole
proprietorship located in Massachusetts ("THL"), (ii) any Affiliate of THL,
(iii) any officer, employee or consultant of THL, (iv) Xxxxxx X. Xxx Equity
Fund, III L.P., Xxxxxx X. Xxx Foreign Fund III, L.P., THL-CCI Limited
Partnership, and THL FSI Equity Investors, L.P. (collectively, the "THL
Investors") and (v) any limited or general partner, stockholder, officer,
employee or consultant of any THL Investor.
"Issue Date" means August 20, 2003.
"Joint Venture" means a corporation, partnership or other
business entity, other than a Subsidiary of the Company, engaged or proposed to
be engaged in the same or a similar line of business as the Company in which the
Company owns, directly or indirectly, not less than 20% and not more than 50% of
the total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers and trustees
thereof, with the balance of the ownership interests being held by one or more
investors.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Management Stockholders" means Xxxx X. Xxxxxxxx, Xxxx X.
Xxxxxxx and individuals who are officers, directors, employees and other members
of the management of the Company as of the Issue Date, or immediate family
members or relatives thereof, or trusts or partnerships for the benefit of, or
companies or other entities owned by, any of the foregoing, or any of their
heirs, executors, successors or legal representatives, who at any particular
date shall beneficially own or have the right to acquire directly or indirectly,
common stock of the Company.
"Minimum Rating" means (i) a rating of at least BBB- (or
equivalent successor rating) by S&P and (ii) a rating of at least Baa3 (or
equivalent successor rating) by Moody's.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions), (b) taxes paid or payable after taking into
account any reduction in consolidated tax liability due to available tax credits
or deductions and any tax sharing arrangements, (c) repayment of Senior
Indebtedness that is required to be repaid in connection with such Asset Sale,
(d) any portion of cash proceeds which the Company determines in good faith
should be reserved for
-13-
post-closing adjustments, it being understood and agreed that on the day that
all such post-closing adjustments have been determined, the amount (if any) by
which the reserved amount in respect of such Asset Sale exceeds the actual
post-closing adjustments payable by the Company or any of its Subsidiaries shall
constitute Net Cash Proceeds on such date; provided that, in the case of the
sale by the Company of an asset constituting an Investment made after the Issue
Date (other than a Permitted Investment), the "Net Cash Proceeds" in respect of
such Asset Sale shall not include the lesser of (x) the cash received with
respect to such Asset Sale and (y) the initial amount of such Investment, less,
in the case of clause (y), all amounts (up to an amount not to exceed the
initial amount of such Investment) received by the Company with respect to such
Investment, whether by dividend, sale, liquidation or repayment, in each case
prior to the date of such Asset Sale.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness, without
duplication.
"Offering Memorandum" means the Offering Memorandum dated
August 6, 2003 relating to the Initial Notes; provided that after the issuance
of Exchange Notes, all references herein to "Offering Memorandum" shall be
deemed references to the prospectus relating to the Exchange Notes.
"Officer" means the Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President, the Treasurer or the Secretary
of the Company, as applicable.
"Officers' Certificate" means a certificate signed by two
Officers.
"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 or the Trustee.
"Perbio Acquisition" means (a) the acquisition by a Wholly
Owned Subsidiary of the Company of more than 50% of the outstanding shares of
Perbio Science AB pursuant to a tender offer and (b) if such tender offer
results in less than 100% of the shares of Perbio Science AB being so acquired,
any subsequent acquisitions by a Wholly Owned Subsidiary of the Company of
additional shares of Perbio Science AB from third parties (including pursuant to
any compulsory acquisition procedure under the laws of Sweden).
"Perbio Transactions" means (a) the Perbio Acquisition, (b)
the financing for the Perbio Acquisition including the entry into this Indenture
and the offer and issuance of the Securities on the Issue Date and borrowings
under the Credit Facility and (c) all other transactions relating to any of the
foregoing (including payment of fees and expenses related to any of the
foregoing).
-14-
"Permitted Holder" means and includes (i) the Investors, (ii)
the Management Stockholders, (iii) any corporation the outstanding voting power
of the Capital Stock of which is beneficially owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as their
ownership of the voting power of the Capital Stock of the Company, (iii) any
Plan, (iv) any underwriter during the period engaged in a firm commitment
underwriting on behalf of the Company with respect to the shares of Capital
Stock being underwritten or (v) the Company or any Subsidiary of the Company.
"Permitted Indebtedness" means, without duplication, (i) the
Original Securities, (ii) the Existing Senior Notes and Existing Senior
Subordinated Notes, (iii) Indebtedness incurred pursuant to the Credit Facility
in an aggregate principal amount at any time outstanding not to exceed in the
aggregate the amount equal to (A) $1.1 billion, plus (B) in the case of any
refinancing of the Credit Facility or any portion thereof, the aggregate fees,
underwriting discounts, premiums and other costs and expenses incurred in
connection with such refinancing, (iv) Indebtedness of Foreign Subsidiaries
incurred solely for working capital purposes of such Foreign Subsidiaries, (v)
Indebtedness of the Company and its Restricted Subsidiaries outstanding on the
Issue Date (other than indebtedness described in clause (i), (ii) or (iii)
above), (vi) Interest Swap Obligations of the Company or any of its Restricted
Subsidiaries covering Indebtedness of the Company or any of its Restricted
Subsidiaries, provided that any Indebtedness to which any such Interest Swap
Obligations correspond is otherwise permitted to be incurred under this
Indenture; provided, further, that such Interest Swap Obligations are entered
into, in the judgment of the Company to protect the Company and its Restricted
Subsidiaries from fluctuation in interest rates on their respective outstanding
Indebtedness, (vii) Indebtedness of the Company or any of its Restricted
Subsidiaries under Currency Agreements entered into, in the judgment of the
Company, to protect the Company or such Restricted Subsidiary of the Company
from fluctuation in foreign currency exchange rates, (viii) Indebtedness owed by
any Restricted Subsidiary of the Company to the Company or any Restricted
Subsidiary of the Company or by the Company to any Restricted Subsidiary of the
Company, (ix) Acquired Indebtedness of the Company or any Restricted Subsidiary
of the Company to the extent the Company could have incurred such Indebtedness
in accordance with clause (i) or (ii) of the first proviso to Section 4.3 on the
date such Indebtedness became Acquired Indebtedness; provided that, in the case
of Acquired Indebtedness of a Restricted Subsidiary of the Company, such
Acquired Indebtedness was not incurred in connection with such Person becoming a
Restricted Subsidiary of the Company, (x) Indebtedness arising from the honoring
by a bank or other financial institution of a check, draft or other similar
instrument drawn against insufficient funds in the ordinary course of business,
(xi) any refinancing, modification, replacement, renewal, restatement,
refunding, deferral, extension, substitution, supplement, reissuance or resale
of existing or future Indebtedness, including any additional Indebtedness
incurred to pay interest or premiums required by the instruments governing such
existing or future Indebtedness as in effect at the time of issuance thereof
("Required Premiums") and fees in connection therewith; provided that any such
event shall not (1) result in an increase in the aggregate principal amount of
Permitted Indebtedness (except to the extent such increase is a result of a
simultaneous incurrence of additional Indebtedness (A) to pay Required Premiums
and related fees or (B) otherwise permitted to be
-15-
incurred under this Indenture) of the Company and its Restricted Subsidiaries
and (2) other than with respect to Senior Indebtedness, create Indebtedness with
a Weighted Average Life to Maturity at the time of such Indebtedness is incurred
that is less than the Weighted Average Life to Maturity of such time of the
Indebtedness being refinanced, modified, replaced, renewed, restated, refunded,
deferred, extended, substituted, supplemented, reissued or resold (except that
this subclause (2) will not apply in the event the Indebtedness being
refinanced, modified, replaced, renewed, restated, refunded, deferred, extended,
substituted, supplemented, reissued or resold was originally incurred in
reliance upon clause (viii) or (xvii) of this definition); provided that no
Restricted Subsidiary of the Company may refinance any Indebtedness pursuant to
this clause (xi) other than its own Indebtedness, (xii) Indebtedness (including
Capitalized Lease Obligations) incurred by the Company or any Restricted
Subsidiary to finance the purchase, lease or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) in an aggregate principal amount
outstanding not to exceed the greater of $60.0 million and 3.0% of Consolidated
Total Assets at the time of any incurrence thereof (which amount shall be deemed
not to include any such Indebtedness incurred in whole or in part under the
Credit Facility to the extent permitted by clause (iii) above), (xiii) the
incurrence by a Receivables Entity of Indebtedness in a Qualified Receivables
Transaction that is not recourse to the Company or any Restricted Subsidiary of
the Company (except for Standard Securitization Undertakings), and the
incurrence by a Receivables Entity of Indebtedness under a Purchase Money Note,
(xiv) Indebtedness incurred by the Company or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit issued
in the ordinary course of business, including, without limitation, letters of
credit in respect of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding workers'
compensation claims, (xv) Indebtedness arising from agreements of the Company or
a Restricted Subsidiary of the Company providing for indemnification, adjustment
of purchase price, earn out or other similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a
Restricted Subsidiary of the Company, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
Restricted Subsidiary of the Company for the purpose of financing such
acquisition; provided that the maximum assumable liability in respect of all
such Indebtedness shall at no time exceed the gross proceeds actually received
by the Company and its Restricted Subsidiaries in connection with such
disposition, (xvi) obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary of
the Company in the ordinary course of business, (xvii) Indebtedness consisting
of guarantees (a) by the Company of Indebtedness, leases and any other
obligation or liability permitted to be incurred under this Indenture by
Restricted Subsidiaries of the Company, and (b) subject to Section 4.11, by
Restricted Subsidiaries of the Company of Indebtedness, leases and any other
obligation or liability permitted to be incurred under this Indenture by the
Company or other Restricted Subsidiaries of the Company, and (xviii) additional
Indebtedness of the Company or any Restricted Subsidiary of the Company in an
aggregate principal amount not to exceed the greater of $60.0 million and 3.0%
of Consolidated Total Assets at any one time outstanding.
-16-
"Permitted Investments" means (i) Investments by the Company
or any Restricted Subsidiary of the Company in any Restricted Subsidiary of the
Company (whether existing on the Issue Date or created thereafter) and
Investments in the Company by any Restricted Subsidiary of the Company; (ii)
cash and Cash Equivalents; (iii) Investments existing on the Issue Date; (iv)
loans and advances to employees, officers and directors of the Company and its
Restricted Subsidiaries not in excess of $10.0 million at any one time
outstanding; (v) accounts receivable owing to the Company or any Restricted
Subsidiary of the Company created or acquired in the ordinary course of business
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 such Restricted Subsidiary of the Company deems reasonable under the
circumstances; (vi) Currency Agreements and Interest Swap Obligations entered
into by the Company or any of its Restricted Subsidiaries for bona fide business
reasons and not for speculative purposes and otherwise in compliance with this
Indenture; (vii) Investments in securities of or other investments in trade
creditors or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or
customers; (viii) Investments in the Securities, Existing Senior Notes or the
Existing Senior Subordinated Notes; (ix) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (A) such Person becomes a Restricted Subsidiary of the Company or (B)
such Person is merged, consolidated or amalgamated with or into, or transfers or
conveys all or substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company; (x) additional Investments
having an aggregate fair market value, taken together with all other Investments
made pursuant to this clause (x) that are at the time outstanding, not exceeding
$15.0 million at the time of such Investment (with the fair market value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value), plus an amount equal to (A) 100% of the aggregate
net cash proceeds received by the Company from any Person (other than a
Subsidiary of the Company) from the issuance and sale subsequent to the Issue
Date of Qualified Capital Stock of the Company (including Qualified Capital
Stock issued upon the conversion of convertible Indebtedness or in exchange for
outstanding Indebtedness or as capital contributions to the Company (other than
from a Subsidiary)) and (B) without duplication of any amounts included in
clause (x)(A) above, 100% of the aggregate net cash proceeds of any equity
contribution received by the Company from a holder of the Company's Capital
Stock, that in the case of amounts described in clause (x)(A) or (x)(B) are
applied by the Company within 180 days after receipt, to make additional
Permitted Investments under this clause (x) (such additional Permitted
Investments being referred to collectively as "Stock Permitted Investments");
(xi) any Investment by the Company or a Restricted Subsidiary of the Company in
a Receivables Entity or any Investment by a Receivables Entity in any other
Person in connection with a Qualified Receivables Transaction, including
investments of funds held in accounts permitted or required by the arrangements
governing such Qualified Receivables Transaction or any related Indebtedness;
provided that any Investment in a Receivables Entity is in the form of a
Purchase Money Note, contribution of additional Receivables or an equity
interest; (xii) Investments received by the Company or its Restricted
Subsidiaries as consideration for asset sales, including Asset Sales; provided
in the case of an Asset Sale, (A) such Investment does not exceed 25% of the
consideration received for such
-17-
Asset Sale and (B) such Asset Sale is otherwise effected in compliance with
Section 4.6; (xiii) Investments by the Company or its Restricted Subsidiaries in
Joint Ventures in an aggregate amount not in excess of $50.0 million; and (xiv)
that portion of any Investment where the consideration provided by the Company
is Capital Stock of the Company (other than Disqualified Capital Stock). Any net
cash proceeds that are used by the Company or any of its Restricted Subsidiaries
to make Stock Permitted Investments pursuant to clause (x) of this definition
shall not be included in subclause (v) or (w) of clause (iii) of the first
paragraph of Section 4.4.
"Permitted Liens" means the following types of Liens:
(i) Liens securing the Securities or the Existing Senior
Notes;
(ii) Liens securing Acquired Indebtedness; provided that
such Liens do not extend to or cover any property or assets of the
Company or of any of its Restricted Subsidiaries other than the
property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company;
(iii) Liens existing on the Issue Date, together with any
Liens securing Indebtedness permitted to be incurred under this
Indenture in order to refinance the Indebtedness secured by Liens
existing on the Issue Date; provided that the Liens securing the
refinancing Indebtedness shall not extend to property (plus
improvements accessions, proceeds or distributions in respect thereof)
other than that securing the Indebtedness being refinanced;
(iv) Liens in favor of the Company on the property or
assets, or any proceeds, income or profit therefrom, of any Restricted
Subsidiary of the Company;
(v) Liens on property existing at the time of acquisition
thereof by the Company or a Restricted Subsidiary of the Company, other
than Liens securing Acquired Indebtedness; provided that such Liens
were in existence prior to such acquisition and do not extend to any
property other than the property so acquired by the Company or a
Restricted Subsidiary of the Company;
(vi) Liens on property of a Person at the time such Person
is merged or consolidated with the Company or a Restricted Subsidiary
of the Company, other than Liens securing Acquired Indebtedness;
provided that such Liens were in existence prior to such merger or
consolidation and do not extend to any assets other than those of the
Person merged or consolidated with the Company or a Restricted
Subsidiary of the Company; and
(vii) other Liens securing Senior Subordinated
Indebtedness, provided that the maximum aggregate amount of outstanding
obligations secured thereby shall not at any time exceed $15.0 million.
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"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency or
political subdivision thereof or any other entity.
"Plan" means any employee benefit plan, retirement plan,
deferred compensation plan, restricted stock plan, health, life, disability or
other insurance plan or program, employee stock purchase plan, employee stock
ownership plan, pension plan, stock option plan or similar plan or arrangement
of the Company or any Subsidiary of the Company, or other successor plan
thereof, and "Plans" shall have a correlative meaning.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Productive Assets" means assets (including Capital Stock of a
Person that directly or indirectly own assets) of a kind used or usable in the
business of the Company and its Restricted Subsidiaries as, or related to such
business, conducted on the date of the relevant Asset Sale.
"Purchase Money Note" means a promissory note of a Receivables
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Subsidiary of the Company in connection with a Qualified Receivables
Transaction to a Receivables Entity, which note (a) shall be repaid from cash
available to the Receivables Entity, other than (i) amounts required to be
established as reserves pursuant to agreements, (ii) amounts paid to investors
in respect of interest, (iii) principal and other amounts owing to such
investors and amounts owing to such investors and (iv) amounts paid in
connection with the purchase of newly generated receivables and (b) may be
subordinated to the payments described in (a).
"Purchase Money Obligations" means any Indebtedness incurred
to finance or refinance the acquisition, leasing, construction or improvement of
property (real or personal) or assets, and whether acquired through the direct
acquisition of such property or assets or the acquisition of the Capital Stock
of any Person owning such property or assets, or otherwise.
"QIB" means any "qualified institutional buyer" (as defined
under the Securities Act).
"Qualified Capital Stock" means any stock that is not
Disqualified Capital Stock.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any or its Subsidiaries may sell,
convey or otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Company or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by a Receivables Entity), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Company or any of its
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Subsidiaries, and any assets related thereto including, without limitation, all
collateral securing such accounts receivable, all contracts and all guarantees
or other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable. The grant of a
security interest in any accounts receivable of the Company or any of its
Restricted Subsidiaries to secure Bank Indebtedness shall not be deemed a
Qualified Receivables Transaction.
"Receivables Entity" means a Wholly Owned Subsidiary of the
Company (or another Person in which the Company or any Subsidiary of the Company
makes an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable and related assets) which engages in no activities
other than in connection with the financing of accounts receivable, all proceeds
thereof and all rights (contractual or other), collateral and other assets
relating thereto, and any business or activities incidental or related to such
business, and which is designated by the Board of Directors of the Company (as
provided below) as a Receivables Entity (a) no portion of the Indebtedness or
any other Obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (ii) is recourse to or
obligates the Company or any Subsidiary of the Company in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any property
or asset of the Company or any Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings, (b) with which neither the
Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms which the Company reasonably
believes to be no less favorable to the Company or such Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable, and (c) to which neither the
Company nor any Subsidiary of the Company has any obligation to maintain or
preserve such entity's financial condition or cause such entity to achieve
certain levels of operating results other than through the contribution of
additional Receivables, related security and collections thereto and proceeds of
the foregoing. Any such designation by the Board of Directors of the Company
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors of the Company giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Registered Exchange Offer" shall mean an offer by the Company
to exchange Initial Securities for Exchange Securities issued pursuant to an
effective registration statement under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated August 20, 2003, by and among the Company, X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston LLC and Lazard Freres & Co. LLC, as
such agreement my be amended, modified or
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supplemented from time to time and, with respect to any Additional Securities,
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 rights given by the Company to certain purchasers
of Additional Securities with respect to the registration of certain Additional
Securities under the Securities Act.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Indebtedness;
provided that if, and for so long as, any Designated Senior Indebtedness lacks
such a representative, then the Representative for such Designated Senior
Indebtedness shall at all times constitute the holders of a majority in
outstanding principal amount of such Designated Senior Indebtedness in respect
of any Designated Senior Indebtedness.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"S&P" means Standard & Poor's Ratings Service, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such property.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" or "Holder" means the Person in whose name a
Security is registered on the Registrar's books.
"Securities Custodian" means the trustee as custodian for the
Depository.
"Senior Indebtedness" means (i) Bank Indebtedness and (ii) all
Indebtedness of the Company including interest thereon (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company or any Restricted Subsidiary of the
Company whether or not a claim for post-filing interest is allowed in such
proceedings), whether outstanding on the Issue Date or thereafter incurred,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is expressly provided that such obligations are not
superior in right of payment to the Securities; provided, however, that Senior
Indebtedness shall not include (1) any obligation of the Company to any
Subsidiary of the
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Company, (2) any liability for Federal, state, local or other taxes owed or
owing by the Company, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of the
Company which is expressly subordinate in right of payment to any other
Indebtedness of the Company, including any Senior Subordinated Indebtedness and
any Subordinated Obligations, (5) any obligations with respect to any Capital
Stock or (6) that portion of any Indebtedness incurred in violation of Section
4.3 (but, as to any such obligation, no such violation shall be deemed to exist
for purposes of this clause (6) if the holders(s) of such obligation or their
representative and the Trustee shall have received an Officers' Certificate of
the Company to the effect that the incurrence of such Indebtedness does not (or,
in the case of revolving credit Indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate such provisions of this Indenture).
"Senior Subordinated Indebtedness" means the Securities, the
Existing Senior Subordinated Notes and any other Indebtedness of the Company
that specifically provides that such Indebtedness is to rank pari passu with the
Securities and is not by its express terms subordinate in right of payment to
any Indebtedness of the Company which is not Senior Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "significant subsidiary" of the Company within the meaning of Rule
1-02 under Regulation S-X promulgated by the Commission, as in effect on the
Issue Date.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which the Company reasonably believes to be customary
in an accounts receivable transaction.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision.
"Subordinated Obligation" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter incurred) which is
expressly subordinate in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or (ii) any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly, owned by
such Person.
"Subsidiary Guarantor" means a Restricted Subsidiary of the
Company that executes and delivers a supplemental indenture pursuant to Section
4.11.
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"TIA" means the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb), as amended, as in effect on the date of this
Indenture.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in Section 2.6(d) hereof.
"Trust Officer" means any officer of the Trustee assigned by
the Trustee to administer this Indenture, or in the case of a successor trustee,
an officer assigned to the department, division or group performing the
corporation trust work of such successor and assigned to administer this
Indenture.
"Unrestricted Subsidiary" of any Person means (i) any
Subsidiary of such Person that at the time of determination shall be or continue
to be designated an Unrestricted Subsidiary by the Board of Directors of such
Person in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Restricted Subsidiary of the Company
that is not a Subsidiary of the Subsidiary to be so designated; provided that
(A) such designation was made at or prior to the Issue Date, (B) the Subsidiary
to be so designated has total consolidated assets of $1,000 or less or (C) if
such Subsidiary has consolidated assets greater than $1,000, then the Company
certifies to the Trustee that such designation complies with Section 4.4 and
that each Subsidiary to be so designated and each of its Subsidiaries has not at
the time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the
Company only if (x) immediately after giving effect to such designation and
treating all Indebtedness of such Unrestricted Subsidiary as being incurred on
such date, the Company is able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.3
or (y) the Consolidated Fixed Charge Coverage Ratio would be greater than it was
immediately prior to such designation, and in each case no Default or Event of
Default shall have occurred and be continuing. Any such designation by the Board
of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complies with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
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"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means any Restricted Subsidiary of
the Company all the outstanding voting securities of which (other than
directors, qualifying shares or an immaterial amount of shares required to be
owned by other Persons pursuant to applicable law) are owned, directly or
indirectly, by the Company.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction"........................... 4.7
"Agent Member".................................... 2.1(c)
"Amendment"....................................... 4.5
"Authenticating Agent"............................ 2.2
"Bankruptcy Law".................................. 6.1
"Blockage Notice"................................. 10.3
"Change of Control Offer"......................... 4.8(a)
"Change of Control Payment Date".................. 4.8(b)
"Company"......................................... Preamble
"Covenant Defeasance"............................. 8.2(c)
"Custodian"....................................... 6.1
"Definitive Securities"........................... 2.1(d)
"Event of Default"................................ 6.1
"Exchange Notes".................................. Preamble
"Exchange Securities"............................. 2.1
"Global Security"................................. 2.1(b)
"Guarantee"....................................... 4.11
"incur"........................................... 4.3
"Initial Agreement"............................... 4.5
"Initial Lien".................................... 4.2
"Initial Notes"................................... Preamble
"Initial Securities".............................. 2.1(a)
"Legal Defeasance"................................ 8.2(b)
"Legal Holiday"................................... 13.8
"Net Proceeds Offer".............................. 4.6(a)
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Defined in
Term Section
---- ----------
"Net Proceeds Offer Amount"....................... 4.6(a)
"Net Proceeds Offer Trigger Date"................. 4.6(a)
"Note Offer Amount"............................... 4.6(a)
"Net Proceeds Offer Payment Date"................. 4.6(a)
"Original Securities"............................. Preamble
"Other Debt"...................................... 4.6(a)
"pay the Securities".............................. 10.3
"Paying Agent".................................... 2.3
"Payment Blockage Period"......................... 10.3
"Purchase Agreement".............................. Preamble
"Reference Period"................................ 4.4
"Refinancing Agreement"........................... 4.5
"Registered Securities"........................... 2.1(a)
"Registrar"....................................... 2.3
"Regulation S".................................... 2.1(b)
"Restricted Payment".............................. 4.4
"Rule 144A"....................................... 2.1(b)
"Securities"...................................... Preamble
"Trustee"......................................... Preamble
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act. This Indenture is subject to the mandatory provisions of the TIA
which are incorporated by reference in and made a part of this Indenture. The
following TIA terms have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by the TIA reference to another statute or defined by
Commission rule have the meanings assigned to them by such definitions.
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SECTION 1.4. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured Indebtedness;
(7) the principal amount of any non interest bearing or
other discount security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated such
date prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation preference of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating. (a) Any Securities issued
as Transfer Restricted Securities, including the Initial Notes (the "Initial
Securities"), and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture. Any Securities issued in a Registered
Exchange Offer (the "Exchange Securities") or any Additional Securities
originally issued pursuant to an effective registration statement under the
Securities Act (any such Additional Securities, together with the Exchange
Securities, the "Registered Securities") and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B, which is hereby
incorporated by reference and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage, in addition to those set forth on Exhibits A and B. The
Company and the Trustee shall approve the forms of the Securities and any
notation, endorsement or legend on them. Each Security shall be dated the date
of its authentication. The terms of the Securities set forth in Exhibit A and
Exhibit B are part of the terms of this Indenture and, to the extent applicable,
the Company, and the Trustee, by their execution and delivery of this Indenture,
expressly agree to be bound by such terms.
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(b) Global Securities. The Securities shall in each case
be issued initially in the form of one or more permanent global securities in
definitive, fully registered form without interest coupons with the Global
Securities Legend set forth on Exhibit A and Exhibit B (each, a "Global
Security"), which shall be deposited on behalf of the Holders of the Securities
represented thereby with the Trustee, at its designated corporate trust office,
as custodian for the Depository, and registered in the name of the Depository or
a nominee of the Depository, duly executed by the Company and authenticated by
the Trustee as hereinafter provided and in the case of Initial Securities
offered and sold to a QIB in reliance on Rule 144A under the Securities Act
("Rule 144A") or outside the United States in reliance on Registration S under
the Securities Act ("Regulation S") the Global Security shall bear the
Restricted Securities Legend set forth in Exhibit A hereto. The aggregate
principal amount of the Global Securities may from time to time be increased or
decreased by endorsements made on such Global Securities by the Trustee, the
Securities Custodian or the Depository or its nominee as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall
apply only to Global Securities.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as the
custodian of the Depository or under such Global Security, and the Depository
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or an agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices of the Depository governing the exercise of the
rights of a holder of a beneficial interest in any Global Security.
(d) Certificated Securities. Except as provided in
Section 2.6, owners of beneficial interests in Global Securities will not be
entitled to receive certificated Securities bearing the Restricted Securities
Legend set forth in Exhibit A hereto (the "Definitive Securities"). Definitive
Securities will bear the Restricted Securities Legend set forth on Exhibit A
unless removed in accordance with Section 2.6(d) hereof.
SECTION 2.2. Execution and Authentication. Two Officers
shall sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually authenticates the Security. The signature of the Trustee on
a Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture.
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The Trustee shall authenticate and deliver: (1) Initial Notes
for original issue in an aggregate principal amount of $150 million, (2)
Exchange Notes for issue only in a Registered Exchange Offer pursuant to the
Registration Rights Agreement, and only in exchange for Initial Notes of an
equal principal amount and (3) Additional Securities for issuance as Transfer
Restricted Securities or otherwise and any Exchange Securities with respect
thereto, in each case upon a written order of the Company signed by two Officers
or by an Officer and either an Assistant Treasurer or an Assistant Secretary of
the Company; provided, any such order with respect to Additional Securities
shall be accompanied by the receipt of an Officers' Certificate and Opinion of
Counsel pursuant to Section 13.4 to authenticate Additional Securities for
original issue in an aggregate principal amount set forth in such request. Such
order shall specify the amount of the Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated and
whether the Securities are to be Initial Securities or Exchange Securities. The
aggregate principal amount of Original Securities outstanding at any time may
not exceed $150 million except as provided in Section 2.7.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent.
SECTION 2.3. Registrar and Paying Agent. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its domestically incorporated Wholly Owned Restricted
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Securities.
SECTION 2.4. Paying Agent to Hold Money in Trust. By at
least 10:00 A.M. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal or interest when due. The
Company shall require each Paying Agent (other than the Trustee)
-28-
to agree in writing that such Paying Agent shall hold in trust for the benefit
of Securityholders or the Trustee all money held by such Paying Agent for the
payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent (other than the Trustee) to pay all money held by it to
the Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect
to the Company, the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. Securityholder 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 Securityholders. If the Trustee is
not the Registrar, the Company shall furnish to the Trustee, in writing 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 as
the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented by a Holder to the Registrar or a
co-registrar with a request:
(x) to register the transfer of such Definitive Securities;
or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that:
(i) such Definitive Securities shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar or co-registrar, duly
executed by such Holder or his attorney duly authorized in writing; and
(ii) if such Definitive Securities are Transfer Restricted
Securities, such Definitive Securities shall also be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect (in the form set forth on the
reverse of the Security); or
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(B) if such Transfer Restricted Securities are being
transferred (x) to the Company or to a QIB in accordance with
Rule 144A under the Securities Act or (y) pursuant to an
effective registration statement under the Securities Act, a
certification from such Holder to that effect (in the form set
forth on the reverse of the Security); or
(C) if such Transfer Restricted Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act; (x) to an institutional "accredited investor" as defined
in subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act (an "IAI"); or (y) in reliance on another
exemption from the registration requirements of the Securities
Act: (i) a certification to that effect from such Holder (in
the form set forth on the reverse of the Security) and (ii) if
the Company or the Trustee so requests, an Opinion of Counsel
reasonably acceptable to the Company and to the Trustee to the
effect that such transfer is in compliance with the Securities
Act.
(b) Transfer and Exchange of Global Securities. (i) The
transfer and exchange of Global Securities or beneficial interests therein shall
be effected through the Depository, in accordance with this Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor.
(ii) A Global Security deposited with the Depository or
with the Trustee as custodian for the Depository pursuant to Section 2.1 shall
be transferred to the beneficial owners thereof only if such transfer complies
with this Section 2.6 and (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at
any time such Depository ceases to be a "clearing agency" registered under the
Exchange Act and a successor depositary is not appointed by the Company within
90 days of such notice and the Company notifies the Trustee in writing of such
circumstances, (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of Securities in definitive form or (iii)
an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depository or the Trustee to issue Definitive
Securities.
(iii) Any Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be surrendered by the
Depository to the Trustee to be so transferred, in whole or from time to time in
part, without charge, and the Company shall sign and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global
Security, an equal aggregate principal amount of Definitive Securities of
authorized denominations. Each Definitive Security delivered in exchange for any
portion of a Global Security transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and shall be registered in such names as the
Depository shall direct. Any Definitive Security delivered in exchange for an
interest in the Global Security
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shall, except as otherwise provided in Section 2.6(d), bear the Restricted
Securities Legend set forth in Exhibit A hereto.
(iv) The registered Holder of a Global Security may grant
proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.
(v) In the event of the occurrence of any of the events
specified in Section 2.6(b)(ii), the Company will promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive, fully
registered form without interest coupons.
(c) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in subsection (b) of this Section 2.6), a Global
Security may not be transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another
nominee by the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(d) Legend. (i) Except for Registered Securities and
except as permitted by the following paragraph (ii) each Security certificate
evidencing Global Securities and Definitive Securities (and all Securities
issued in exchange therefor or substitution thereof) shall bear a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AND
SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER
RULE 144(K) (OR ANY SUCCESSOR PROVISION THEREOF) AS PERMITTING THE
RESALE BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT RESTRICTION)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY, ANY GUARANTOR OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
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(THE "RESALE RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A 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, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" ("IAI") WITHIN THE MEANING OF
SUBPARAGRAPH (A) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN IAI, IN EACH CASE, IN A TRANSACTION INVOLVING A MINIMUM PURCHASE
PRICE OF $250,000 FOR SUCH SECURITIES, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFERS OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND OTHERWISE IN COMPLIANCE WITH OTHER APPLICABLE LAWS,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE."
Except as permitted by the following paragraph (ii), until the
40th day after the Issue Date, each Security certificate evidencing Securities
sold in offshore transactions to non-U.S. persons in reliance on Regulation S
promulgated under the Securities Act shall bear a legend in substantially the
following form:
"UNTIL THE EXPIRATION OF THE "40 DAY DISTRIBUTION COMPLIANCE PERIOD"
(WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE
SECURITIES ACT), BENEFICIAL OWNERSHIP INTERESTS IN THIS SECURITY MAY
ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A.,
AS OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE
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ANONYME. THIS LEGEND WILL BE REMOVED UPON THE EXPIRATION OF SUCH 40 DAY
DISTRIBUTION COMPLIANCE PERIOD."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that
is a Definitive Security, the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Security for a Definitive Security
that does not bear any of the legends set forth in paragraph (i) above
and rescind any restriction on the transfer of such Security; and
(B) in the case of any such Transfer Restricted Security
represented by a Global Security, such Transfer Restricted Security
shall not be required to bear any of the legends set forth in paragraph
(i) above, although it shall continue to be subject to the provisions
of Section 2.6(b) hereof.
(e) Cancellation or Adjustment of Global Security. At
such time as all beneficial interests in a Global Security have either been
exchanged for Definitive Securities, redeemed, repurchased or canceled, such
Global Security shall be retained and canceled by the Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security by the
Securities Custodian to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges
of Securities. (i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this Article II,
execute and the Trustee shall authenticate Definitive Securities and Global
Securities at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company, Registrar or co-registrar
may require payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charges payable upon exchange or
transfer pursuant to Section 4.6, 4.8 or 9.5 or pursuant to paragraph 5 of the
Securities).
(iii) The Registrar or co-registrar shall not be required
to register the transfer of or exchange of (a) any Definitive Security selected
for redemption in whole or in part pursuant to Article III, except the
unredeemed portion of any Definitive Security being redeemed in part, or (b) any
Security for a period beginning (1) 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Securities and ending at the close of
business on the day of such mailing or (2) 15 Business Days before an interest
payment date and ending on such interest payment date.
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(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name a
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none of
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
(v) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(vi) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, a member of, or a
participant in, the Depository or other Person with respect to the accuracy of
the records of the Depository or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Securities or with
respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depository) of any notice (including any notice of
redemption) or the payment of any amount or delivery of any Securities (or other
security or property) under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders
in respect of the Securities shall be given or made only to or upon the order of
the registered Holders (which shall be the Depository or its nominee in the case
of a Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depository subject to the applicable rules
and procedures of the Depository. The Trustee may rely and shall be fully
protected in relying upon information furnished the Depository with respect to
its members, participants and any beneficial owners.
(vii) 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 Security (including any transfers between or
among Depository participants, members or beneficial owners in any Global
Security) 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 2.7. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or if the Holder of a Security claims
that the Security has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Security if the
requirements of Section 8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. If required
by the Trustee or the Company, such Holder shall furnish an indemnity bond
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar
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and any co-registrar from any loss which any of them may suffer if a Security is
replaced. The Company and the Trustee may charge the Holder for their expenses
in replacing a Security. Every replacement Security is an additional obligation
of the Company.
SECTION 2.8. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those
described in this Section as not outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9. Temporary Securities. Until Definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Definitive Securities.
After the preparation of Definitive Securities, the temporary Securities shall
be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, one or more
Definitive Securities representing an equal principal amount of Securities.
Until so exchanged, the Holder of temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as a holder of Definitive
Securities.
SECTION 2.10. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and destroy (subject to the record retention requirements of the Exchange
Act) all Securities surrendered for registration of transfer, exchange, payment
or cancellation and deliver a certificate of such destruction to the Company
unless the Company directs the Trustee to deliver canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
redeemed, paid or delivered to the Trustee for cancellation.
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SECTION 2.11. Defaulted Interest. If the Company defaults
in a payment of interest on the Securities, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed (or upon the Company's failure to do so the Trustee shall fix)
any such special record date and payment date to the reasonable satisfaction of
the Trustee which specified record date shall not be less than 10 days prior to
the payment date for such defaulted interest and shall promptly mail or cause to
be mailed to each Securityholder a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid. The Company
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such defaulted interest
or shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when so deposited to be held in
trust for the benefit of the Person entitled to such defaulted interest as
provided in this Section.
SECTION 2.12. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" 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 Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.13. Issuance of Additional Securities. The
Company shall be entitled to issue Additional Securities under this Indenture
that shall have identical terms as the Original Securities, other than with
respect to the date of issuance, issue price, and amount and accrual of interest
payable on the first Interest Payment Date applicable thereto (and, if such
Additional Securities shall be issued in the form of Transfer Restricted
Securities, other than with respect to transfer restrictions, any registration
rights and the liquidated damages associated therewith); provided that such
issuance is not prohibited by Section 4.3. The Initial Securities and any
Additional Securities and all Exchange Securities shall be treated as a single
class for all purposes under this Indenture. Any Additional Securities issued
under this Indenture will rank pari passu in right of payment with the Original
Securities.
With respect to any Additional Securities, the Company shall
set forth in a resolution of its Board of Directors and in a written order of
the Company, a copy of each of which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this
Indenture;
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(2) the issue price, the issue date, the CUSIP number of
such Additional Securities, the first interest payment date and the
amount of interest payable on such first interest payment date
applicable thereto and the date from which interest shall accrue; and
(3) whether such Additional Securities shall be Transfer
Restricted Securities or Registered Securities.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities or if the Company is
required to redeem Initial Notes pursuant to paragraph 22 of the Initial Notes,
it shall notify the Trustee in writing of the redemption date (which in the case
of a redemption of Initial Notes pursuant to paragraph 22 of the Initial Notes
may be the date of the event triggering the requirement to redeem the Initial
Notes, or another date up to 10 days after the date of such event) and the
principal amount of Securities to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section with respect to redemptions pursuant to paragraph 5 of the
Securities at least 60 days before the redemption date unless the Trustee
consents to a shorter period. If the Company is required to redeem the Initial
Notes pursuant to paragraph 22 of the Initial Notes, the Company shall give
notice thereof to the Trustee concurrently with or promptly after the occurrence
of the event triggering the requirement to redeem the Initial Notes (or at the
option of the Company to the extent practicable, prior to the occurrence of such
event). Such notice shall be accompanied by an Officers' Certificate from the
Company to the effect that such redemption will comply with the conditions
herein. If fewer than all the Securities are to be redeemed, the record date
relating to such redemption shall be selected by the Company and set forth in
the related notice given to the Trustee, which record date shall be not less
than 15 days after the date of such notice.
SECTION 3.2. Selection of Securities To be Redeemed. If
fewer than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances; provided,
however, that if a partial redemption is made with the proceeds of an Equity
Offering, selection of the Securities or portion thereof for redemption shall be
made by the Trustee only on a pro rata basis, unless such method is otherwise
prohibited. The Trustee shall make the selection from outstanding Securities not
previously called for redemption. The Trustee may select for redemption portions
of the principal of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to
the entirety of Securities called for redemption also apply
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to portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.3. Notice of Redemption. In the case of a
redemption pursuant to paragraph 5 of the Securities, at least 30 days but not
more than 60 days prior to the date fixed for redemption of Securities, the
Company shall mail a notice of redemption by first-class mail, postage prepaid,
to each Holder of Securities to be redeemed at the last address for such Holder
then shown on the Registrar's books. In the case of a redemption of Initial
Notes pursuant to paragraph 22 of the Initial Notes, the Company shall mail a
notice of redemption by first class mail, postage prepaid, to each Holder of
Securities at the last address for such Holder then shown on the Registrar's
books on the date it delivers the related notice to the Trustee pursuant to
Section 3.1. Each such notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(5) the paragraph or subparagraph of the Securities pursuant
to which such redemption is being made;
(6) if fewer than all the outstanding Securities are to be
redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(7) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Securities
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(8) the CUSIP number, if any, printed on the Securities
being redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request at least seven days prior to the date
on which such notice is to be given (or such shorter period to which the Trustee
may consent), the Trustee shall give the notice of redemption in the Company's
name and at the Company's expense. In such event, the Company shall provide the
Trustee with the information required by this Section.
SECTION 3.4. Effect of Notice of Redemption. Once notice
of redemption is mailed, Securities called for redemption become due and payable
on the redemption date and at
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the redemption price stated in the notice. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price stated in the notice, plus
accrued interest to the redemption date; provided that if the redemption date is
after a regular record date and on or prior to the interest payment date, the
accrued interest shall be payable to the Securityholder of the redeemed
Securities registered on the relevant record date. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
SECTION 3.5. Deposit Of Redemption Price. By at least
10:00 A.M. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the
Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which are owned by
the Company or a Subsidiary and have been delivered by the Company or such
Subsidiary to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such redemption price or the
Paying Agent is prohibited from making such payment, interest on the Securities
to be redeemed will cease to accrue on and after the applicable redemption date,
whether or not such Securities are presented for payment.
SECTION 3.6. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder (at the Company's expense) a new
Security equal in a principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities. The Company shall
promptly pay the principal of (and premium, if any) and interest on the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal (and premium, if any) and interest shall be considered paid
on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal (and
premium, if any) and interest then due and the Trustee or the Paying Agent, as
the case may be, is not prohibited from paying such money to the Securityholders
on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Paying Agent may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
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SECTION 4.2. Limitation on Liens. The Company will not,
and will not permit any of its Restricted Subsidiaries to, create, incur, assume
or suffer to exist any Liens (other than Permitted Liens) of any kind against or
upon any of their respective property or assets, or any proceeds, income or
profit therefrom which secure Senior Subordinated Indebtedness or Subordinated
Obligations (the "Initial Lien"), unless (i) in the case of Initial Liens
securing Subordinated Obligations, the Securities are secured by a Lien on such
property, assets, proceeds, income or profit that is senior in priority to such
Initial Liens and (ii) in the case of Initial Liens securing Senior Subordinated
Indebtedness, the Securities are equally and ratably secured by a Lien on such
property, assets, proceeds, income or profit. Any such Lien thereby created in
favor of the Securities will be automatically and unconditionally released and
discharged upon (a) the release and discharge of the Initial Lien to which it
relates, or (b) any sale, exchange or transfer to any Person not an Affiliate of
the Company of the property or assets secured by such Initial Lien, or of all of
the Capital Stock held by the Company or any Restricted Subsidiary of the
Company in, or all or substantially all the assets of, any Restricted Subsidiary
of the Company creating such Initial Lien.
SECTION 4.3. Limitation on Incurrence of Additional
Indebtedness. The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of any such Indebtedness, (i) the Company may
incur Indebtedness if on the date of the incurrence of such Indebtedness, after
giving effect to the incurrence thereof, the Consolidated Fixed Charge Coverage
Ratio of the Company is greater than or equal to 2.0 to 1.0 and (ii) any
Restricted Subsidiary of the Company may incur Indebtedness if on the date of
the incurrence of such Indebtedness, after giving effect to the incurrence
thereof, the Consolidated Fixed Charge Coverage Ratio of the Company is greater
than or equal to 2.5 to 1.0; and provided, further, that accrual of interest,
the accretion of accreted value and the payment of interest in the form of
additional interest shall not be deemed an incurrence of Indebtedness for
purposes of this Section 4.3.
For purposes of determining compliance with, and determining
the outstanding principal amount of any particular Indebtedness incurred
pursuant to and in compliance with, this Section 4.3, (x) any other Obligation
of the obligor on such Indebtedness (or of any other Person who could have
incurred such Indebtedness under this Section 4.3) arising under any guarantee,
Lien or letter of credit, bankers' acceptance or other similar instrument or
obligation supporting such Indebtedness shall be disregarded to the extent that
such Guarantee, Lien or letter of credit, bankers' acceptance or other similar
instrument or obligation secures the principal amount of such Indebtedness; (y)
in the event that Indebtedness meets the criteria of more than one of the types
of Permitted Indebtedness, the Company, in its sole discretion, shall classify
such item of Indebtedness and may include the amount and type of such
Indebtedness in one or more of such clauses; and (z) the amount of Indebtedness
issued at a price that is less than the principal
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amount thereof shall be equal to the amount of the liability in respect thereof
determined in accordance with GAAP.
For purposes of determining compliance with any
Dollar-denominated restriction on the incurrence of Indebtedness denominated in
a foreign currency, the Dollar-equivalent principal amount of such Indebtedness
incurred pursuant thereto shall be calculated based on the relevant currency
exchange rate in effect on the date that such Indebtedness was incurred, in the
case of term Indebtedness, or first committed, in the case of revolving credit
Indebtedness; provided that (x) the Dollar-equivalent principal amount of any
such Indebtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date, (y) if such
Indebtedness is incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced and (z) the
Dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency and incurred pursuant to the Credit Facility shall be calculated based
on the relevant currency exchange rate in effect on the date of such incurrence.
The principal amount of any Indebtedness incurred to refinance other
Indebtedness, if incurred in a different currency from the Indebtedness being
refinanced, shall be calculated based on the currency exchange rate applicable
to the currencies in which such respective Indebtedness is denominated that is
in effect on the date of such refinancing.
SECTION 4.4. Limitation on Restricted Payments(a). The
Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make
any distribution (other than dividends or distributions payable in Qualified
Capital Stock) on or in respect of shares of Capital Stock of the Company to
holders of such Capital Stock, (b) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital Stock, other
than the exchange of such Capital Stock for Qualified Capital Stock, or (c) make
any Investment (other than Permitted Investments) in any other Person (each of
the foregoing actions set forth in clauses (a), (b) and (c) (other than the
exceptions thereto) being referred to as a "Restricted Payment"), if at the time
of such Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing, (ii) the
Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.3 or (iii) the
aggregate amount of Restricted Payments made subsequent to the Issue Date shall
exceed, without duplication, the sum of: (u) 50% of the cumulative Consolidated
Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100%
of such loss) of the Company earned during the period (treated as a single
accounting period) beginning on January 1, 1998, to the end of the most recent
fiscal quarter ending prior to the date of such Restricted Payment for which
financial statements of the Company are available (such period, the "Reference
Period"); plus (v) 100% of the aggregate net cash proceeds and the fair market
value of property or assets (as determined in good faith by the
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Board of Directors of the Company, whose determination shall be conclusive)
received by the Company from any Person (other than a Restricted Subsidiary of
the Company) from the issuance and sale after January 21, 1998 of Qualified
Capital Stock of the Company (including Capital Stock issued upon the conversion
of convertible Indebtedness or in exchange for outstanding Indebtedness but
excluding proceeds (net cash proceeds, in the case of a sale for cash) from the
sale of Capital Stock to the extent used to repurchase or acquire shares of
Capital Stock of the Company pursuant to clause (2)(ii) of the next succeeding
paragraph); plus (w) 100% of the aggregate net cash proceeds of any equity
contribution received by the Company from a holder of its Capital Stock (but
excluding net cash proceeds from any equity contribution to the extent used to
repurchase or acquire shares of Capital Stock of the Company pursuant to clause
(2)(iii) of the next succeeding paragraph); plus (x) to the extent that any
Investment (other than a Permitted Investment) that was made after January 21,
1998 is sold or otherwise liquidated or repaid, the lesser of (A) the cash and
the fair market value of property or assets (as determined in good faith by the
Board of Directors of the Company, whose determination shall be conclusive)
received with respect to such sale, liquidation or repayment of such Investment
(less the cost of such sale, liquidation or repayment, if any) and (B) the
initial amount of such Investment; plus (y) the net cash proceeds and the fair
market value of property or assets (as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive) received from
the sale of Capital Stock in an Unrestricted Subsidiary (other than to the
Company or any of its Restricted Subsidiaries); plus (z) the aggregate amount
equal to the net reduction in Investments in Unrestricted Subsidiaries resulting
from (A) dividends, distributions, interest payments, return of capital,
repayments of Investments or other transfers of assets to the Company or any of
its Restricted Subsidiaries from any Unrestricted Subsidiary, or (B) the
redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued
in each case as provided in the definition of "Investment"), not to exceed in
this clause (z) in the case of any such Unrestricted Subsidiary the aggregate
amount of Investments (other than Permitted Investments) made by the Company or
any of its Restricted Subsidiaries in such Unrestricted Subsidiary after the
Issue Date. Any net cash proceeds included in the foregoing clause (iii)(v) or
(iii)(w) shall not be included in clause (x)(A) or clause (x)(B) of the
definition of "Permitted Investments" to the extent actually utilized to make a
Restricted Payment under this paragraph.
Notwithstanding the foregoing, the provisions set forth in the
preceding paragraph do not prohibit: (1) the payment of any dividend or the
consummation of any irrevocable redemption within 60 days after the date of
declaration of such dividend or notice of such redemption if the dividend or
payment of the redemption price, as the case may be, would have been permitted
on the date of declaration or notice; (2) if no Event of Default shall have
occurred and be continuing as a consequence thereof, the acquisition of any
shares of capital stock of the Company (i) solely in exchange for shares of
Qualified Capital Stock of the Company, (ii) through the application of net
proceeds of a substantially concurrent sale (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company, or (iii) through
the application of net cash proceeds of a substantially concurrent equity
contribution received by the Company from a holder of its Capital Stock; (3)
payments for the purpose of and in an amount equal to the amount required to
permit the Company to redeem or repurchase
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shares of its capital stock or options, warrants or other rights in respect
thereof, in each case in connection with the repurchase provisions under
employee stock option or stock purchase agreements or other agreements to
compensate management employees; provided that such redemptions or repurchases
pursuant to this clause (3) shall not exceed $20.0 million in the aggregate
after the Issue Date (which amount shall be increased by the amount of any cash
proceeds to the Company from (x) sales of its Capital Stock or any options,
warrants or other rights in respect thereof to management employees subsequent
to the Issue Date and (y) any "key man" life insurance policies which are used
to make such redemptions or repurchases); (4) the payment of fees and
compensation as permitted under clause (i) of Section 4.7(b); (5) so long as no
Default or Event of Default shall have occurred and be continuing, payments not
to exceed $100,000 in the aggregate, to enable the Company to make payments to
holders of its capital stock in lieu of issuance of fractional shares of its
capital stock; (6) repurchases of capital stock deemed to occur upon the
exercise of stock options if such capital stock represents a portion of the
exercise price thereof; (7) the Perbio Transactions; (8) the Company or any
Restricted Subsidiary from making payments in respect of any redemption,
repurchase, acquisition, cancellation or other retirement for value of shares of
capital stock of the Company or options, stock appreciation or similar
securities, in each case held by then current or former officers, directors or
employees of the Company or any of its Subsidiaries (or their estates or
beneficiaries under their estates) or by an employee benefit plan, upon death,
disability, retirement or termination of employment, not to exceed $20.0 million
in the aggregate after the Issue Date; (9) other Restricted Payments (including
loans or advances) in an aggregate amount outstanding at any time not to exceed
$10.0 million (net of repayments of any such loans or advances). In determining
the aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the immediately preceding paragraph, (a) the net
amounts expended (to the extent such expenditure is in the form of cash or other
property other than Qualified Capital Stock) pursuant to clauses (1), (3), (8)
and (9) of this paragraph shall be included in such calculation, provided that
such expenditures pursuant to clause (3) shall not be included to the extent of
cash proceeds received by the Company from any "key man" life insurance
policies, and (b) the net amounts expended pursuant to clauses (2), (4), (5),
(6) and (7) shall be excluded from such calculation.
SECTION 4.5. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. The Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause 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 or in respect of its Capital
Stock; (b) make loans or advances or to pay any Indebtedness or other obligation
owed to the Company or any other Restricted Subsidiary of the Company; or (c)
transfer any of its property or assets to the Company, except for such
encumbrances or restrictions existing under or by reason of: (1) applicable law;
(2) this Indenture; (3) any restriction or encumbrance (A) that restricts in a
customary manner the subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract, or the assignment or
transfer of any lease, license or other contract, (B) by virtue of any transfer
of, agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any of its Restricted Subsidiaries not
otherwise prohibited by
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this Indenture, (C) pursuant to customary provisions restricting dispositions of
real property interests set forth in any reciprocal easement agreements of the
Company or any of its Restricted Subsidiaries, (D) pursuant to Purchase Money
Obligations that impose encumbrances or restrictions on the property or assets
so acquired, (E) on cash or other deposits or net worth imposed by customers
under agreements entered into in the ordinary course of business, (F) pursuant
to customary provisions contained in agreements and instruments entered into in
the ordinary course of business (including but not limited to leases and joint
venture and other similar agreements entered into in the ordinary course of
business), (G) that arises or is agreed to in the ordinary course of business
and does not detract from the value of property or assets of the Company or any
of its Restricted Subsidiaries in any manner material to the Company or such
Restricted Subsidiary, or (H) pursuant to Currency Agreements or Interest Swap
Obligations; (4) any agreement or instrument of a Person, or relating to
Indebtedness or Capital Stock of a Person, which Person is acquired by or merged
or consolidated with or into the Company or any of its Restricted Subsidiaries,
or which agreement or instrument is assumed by the Company or any of its
Restricted Subsidiaries in connection with an acquisition of assets from such
Person, as in effect at the time of such acquisition, merger or consolidation
(except to the extent that such Indebtedness was incurred to finance, or
otherwise in connection with, such acquisition, merger or consolidation);
provided that for purposes of this clause (4), if another Person is the
successor company in such acquisition, merger or consolidation, any Subsidiary
thereof or agreement or instrument of such Person or any such Subsidiary shall
be deemed acquired or assumed, as the case may be, by the Company or any of its
Restricted Subsidiaries, as the case may be, when such Person becomes the
successor company; (5) agreements existing on the Issue Date (including, without
limitation, the Credit Facility and any instrument governing the Existing Senior
Notes or the Existing Senior Subordinated Notes); (6) restrictions on the
transfer of assets subject to any Lien permitted under this Indenture imposed by
the holder of such Lien; (7) restrictions imposed by any agreement to sell
assets permitted under this Indenture to any Person pending the closing of such
sale; (8) any agreement or instrument governing Capital Stock of any Person that
is acquired after the Issue Date; (9) Indebtedness or other contractual
requirements of a Receivables Entity in connection with a Qualified Receivables
Transaction; provided that such restrictions apply only to such Receivables
Entity and such Restricted Subsidiary is engaged in the Qualified Receivables
Transaction; (10) any agreement or instrument (a "Refinancing Agreement")
effecting a refinancing of Indebtedness incurred pursuant to, or that otherwise
extends, renews, refunds, refinances or replaces, an agreement or instrument
referred to in clause (2), (4) or (5) of this Section 4.5 or this clause (10)
(an "Initial Agreement") or contained in any amendment, supplement or other
modification to an Initial Agreement (an "Amendment"); provided, however, that
the encumbrances and restrictions contained in any such Refinancing Agreement or
Amendment are not materially less favorable to the Holders of the Securities
taken as a whole than encumbrances and restrictions contained in the Initial
Agreement or Initial Agreements to which such Refinancing Agreement or Amendment
relates (as determined in good faith by the Company); or (11) any agreement or
instrument relating to any Indebtedness permitted to be incurred subsequent to
the Issue Date pursuant to Section 4.3 (A) if the encumbrances and restrictions
contained in any such agreement or instrument taken as a whole are not
materially less favorable to the Holders of the Securities than the encumbrances
and restrictions (as determined in good faith by the Company)
-44-
contained in the Initial Agreements (other than Initial Agreements contemplated
by clause (4) above), or (B) if such encumbrance or restriction is not
materially more disadvantageous to the Holders of the Securities than is
customary in comparable financings (as determined in good faith by the Company)
and the Company determines that such encumbrance or restriction will not
materially affect the Company's ability to make principal or interest payments
on the Securities.
SECTION 4.6. Limitation on Asset Sales. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, consummate
an Asset Sale unless (i) the Company or the applicable Restricted Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise disposed of (as
determined in good faith by the Company's Board of Directors, whose
determination shall be conclusive); (ii) in the case of any Asset Sale (or
series of Asset Sales) having a fair market value (as determined in good faith
by the Company's Board of Directors, whose determination shall be conclusive) of
$25.0 million or more, at least 75% of the consideration received by the Company
or such Restricted Subsidiary, as the case may be, from such Asset Sale shall be
cash or Cash Equivalents and is received at the time of such disposition;
provided that the amount of (A) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet or in the notes thereto)
of the Company or such Restricted Subsidiary (other than liabilities that are by
their terms subordinated to the Securities) that are assumed by the transferee
of any such assets and from which the Company and its Restricted Subsidiaries
are unconditionally released, (B) any notes or other obligations received by the
Company or such Restricted Subsidiary from such transferee that are converted by
the Company or such Restricted Subsidiary within 180 days of such receipt into
cash or Cash Equivalents (to the extent of the cash or Cash Equivalents
received), (C) any assumption of Indebtedness of the Company or any Restricted
Subsidiary of the Company and the release of the Company or such Restricted
Subsidiary from all liability on payment of the principal amount of such
Indebtedness in connection with such Asset Sale, (D) any Indebtedness of any
Restricted Subsidiary of the Company that is no longer a Restricted Subsidiary
of the Company as a result of such Asset Sale, to the extent that the Company
and each other Restricted Subsidiary of the Company are released from any
guarantee of payment of the principal amount of such Indebtedness in connection
with such Asset Sale, and (E) any Designated Non-Cash Consideration received by
the Company or any of its Restricted Subsidiaries from such transferee having an
aggregate fair market value (as determined in good faith by the Company's Board
of Directors, whose determination shall be conclusive), taken together with all
other Designated Non-Cash Consideration received pursuant to this clause (E)
then outstanding, not to exceed the greater of $50.0 million and 2.5% of
Consolidated Total Assets at the time of receipt of such Designated Non-Cash
Consideration (with the fair market value of each item of Designated Non-Cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value) shall be deemed to be cash for purposes of this
provision; and (iii) upon the consummation of an Asset Sale, the Company shall
apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof either (A) to
prepay Senior Indebtedness and, in the case of any Senior Indebtedness under any
revolving credit facility, effect a permanent reduction
-45-
in the availability under such revolving credit facility, (B) to reinvest in
Productive Assets, or (C) a combination of prepayment and investment permitted
by the foregoing clauses (iii)(A) and (iii)(B). On the 366th day after an Asset
Sale or such earlier date, if any, as the Board of Directors of the Company or
of such Restricted Subsidiary determines not to apply the Net Cash Proceeds
relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and
(iii)(C) of the immediately preceding sentence (each, a "Net Proceeds Offer
Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been
applied on or before such Net Proceeds Offer Trigger Date as permitted in
clauses (iii)(A), (iii)(B) and (iii)(C) of the immediately preceding sentence
(each a "Net Proceeds Offer Amount") shall be applied by the Company or such
Restricted Subsidiary to make an offer to purchase for cash (the "Net Proceeds
Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor
more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
all Holders on a pro rata basis at least that amount of Securities equal to the
Note Offer Amount at a price in cash equal to 100% of the principal amount of
the Securities to be purchased, plus accrued and unpaid interest thereon, if
any, to the date of purchase; provided, however, that if at any time any
non-cash consideration received by the Company or any Restricted Subsidiary of
the Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 4.6. Any
offer to purchase with respect to Other Debt shall be made and consummated
concurrently with any Net Proceeds Offer.
"Other Debt" shall mean other Indebtedness of the Company that
ranks pari passu with the Securities and requires that an offer to purchase such
Other Debt be made upon consummation of an Asset Sale.
"Note Offer Amount" means (i) if an offer to purchase Other
Debt is not being made, the amount of the Net Proceeds Offer Amount and (ii) if
an offer to purchase Other Debt is being made, an amount equal to the product of
(x) the Net Proceeds Offer Amount and (y) a fraction the numerator of which is
the aggregate amount of Securities tendered pursuant to such offer to purchase
and the denominator of which is the aggregate amount of Securities and Other
Debt tendered pursuant to such offer to purchase.
Notwithstanding the foregoing, if a Net Proceeds Offer Amount
is less than $25.0 million, the application of the Net Cash Proceeds
constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be
deferred until such time as such Net Proceeds Offer Amount plus the aggregate
amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds
Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all
Asset Sales by the Company and its Restricted Subsidiaries aggregates at least
$25.0 million, at which time the Company or such Restricted Subsidiary shall
apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that
have been so deferred to make a Net Proceeds Offer (the first date on which the
aggregate of all such deferred Net Proceeds Offer Amounts is equal to $25.0
million or more shall be deemed to be a "Net Proceeds Offer Trigger Date").
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Notwithstanding the preceding paragraphs of this Section
4.6(a), the Company and its Restricted Subsidiaries will be permitted to
consummate an Asset Sale without complying with such paragraphs to the extent
(i) at least 75% of the consideration for such Asset Sale constitutes Productive
Assets and (ii) such Asset Sale is for at least fair market value (as determined
in good faith by the Company's Board of Directors, whose determination shall be
conclusive); provided that any consideration not constituting Productive Assets
received by the Company or any of its Restricted Subsidiaries in connection with
any Asset Sale permitted to be consummated under this paragraph shall constitute
Net Cash Proceeds and shall be subject to the provisions of the preceding
paragraphs; provided, that at the time of entering into such transaction or
immediately after giving effect thereto, no Default or Event of Default shall
have occurred or be continuing or would occur as a consequence thereof.
(b) Each Net Proceeds Offer will be mailed to the record
Holders as shown on the register of Holders within 25 days following the Net
Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with
the procedures set forth in this Indenture. Upon receiving notice of the Net
Proceeds Offer, Holders may elect to tender their Securities in whole or in part
in integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender securities in an amount exceeding the Note Offer Amount,
Securities of tendering Holders will be purchased on a pro rata basis (based on
amounts tendered). A Net Proceeds Offer shall remain open for a period of 20
Business Days or such longer period as may be required by law; provided, such
period shall not be less than the period with respect to any offer to purchase
Other Debt being made concurrently with such Net Proceeds Offer or terminate
prior to any such period. To the extent that the aggregate amount of Securities
tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer
Amount, the Company may use any remaining Net Proceeds Offer Amount for general
corporate purposes. Upon completion of any such Net Proceeds Offer, the Net
Proceeds Offer Amount shall be reset at zero.
(c) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Securities pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations conflict with
this Section 4.6, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.6 by virtue thereof.
SECTION 4.7. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction or
series of related transactions (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with,
or for the benefit of, any of its Affiliates (an "Affiliate Transaction"), other
than (x) Affiliate Transactions permitted under paragraph (b) below and (y)
Affiliate Transactions entered into on terms that are fair and reasonable to,
and in the best interests of, the Company or such Restricted Subsidiary, as the
case may be, as determined in good faith by the Company's Board of Directors;
-47-
provided, however, that for a transaction or series of related transactions with
an aggregate value of $5.0 million or more, at the Company's option (i) such
determination shall be made in good faith by a majority of the disinterested
members of the Board of the Directors of the Company or (ii) the Board of
Directors of the Company or any such Restricted Subsidiary party to such
Affiliate Transaction shall have received a favorable opinion from a nationally
recognized investment banking firm that such Affiliate Transaction is fair from
a financial point of view to the Company or such Restricted Subsidiary;
provided, further, that for a transaction or series of related transactions with
an aggregate value of $25.0 million or more, the Board of Directors of the
Company shall have received a favorable opinion from a nationally recognized
investment banking firm that such Affiliate Transaction is fair from a financial
point of view to the Company or such Restricted Subsidiary.
(b) The foregoing restrictions shall not apply to (i)
reasonable fees and compensation paid to, and indemnity provided on behalf of,
officers, directors, employees or consultants of the Company or any Subsidiary
of the Company as determined in good faith by the Company's Board of Directors;
(ii) transactions exclusively between or among the Company and any of its
Restricted Subsidiaries or exclusively between or among such Restricted
Subsidiaries, provided such transactions are not otherwise prohibited by this
Indenture; (iii) transactions effected as part of a Qualified Receivables
Transaction; (iv) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including pursuant to
any amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the Issue Date;
(v) Restricted Payments permitted by this Indenture; (vi) any Permitted
Investment; (vii) transactions permitted by, and complying with, the provisions
of Section 5.1; (viii) any payment, issuance of securities or other payments,
awards or grants, in cash or otherwise, pursuant to, or the funding of,
employment arrangements and Plans approved by the Board of Directors of the
Company; (ix) the grant of stock options or similar rights to employees and
directors of the Company and its Subsidiaries pursuant to Plans and employment
contracts approved by the Board of Directors of the Company; (x) loans or
advances to officers, directors or employees of the Company or its Restricted
Subsidiaries not in excess of $5.0 million at any one time outstanding; (xi) the
granting or performance of registration rights under a written registration
rights agreement approved by the Board of Directors of the Company; (xii)
transactions with Persons solely in their capacity as holders of Indebtedness or
Capital Stock of the Company or any of its Restricted Subsidiaries, where such
Persons are treated no more favorably than holders of Indebtedness or Capital
Stock of the Company or such Restricted Subsidiary generally; (xiii) any
agreement to do any of the foregoing.
SECTION 4.8. Change of Control. (a) Upon the occurrence
of a Change of Control Triggering Event, each Holder will have the right to
require that the Company purchase for cash all or a portion of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued interest to the date of purchase, provided that the Company
shall not be obligated to repurchase the Securities pursuant to this Section 4.8
in the event that the Company
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has exercised the right to redeem all of the Securities as described in
paragraph 5 of the Securities. In the event that, at the time of such Change of
Control Triggering Event, the terms of the Bank Indebtedness restrict or
prohibit the repurchase of the Securities pursuant to this Section 4.8, prior to
the mailing of the notice referred to below, but in any event within 30 days
following the date the Company obtains actual knowledge of any Change of Control
Triggering Event (unless the Company has exercised its right to redeem all the
Securities as described in paragraph 5 of the Securities), the Company shall (a)
repay in full and terminate all commitments under the Bank Indebtedness or offer
to repay in full and terminate all commitments under all Bank Indebtedness and
to repay the Bank Indebtedness owed to each holder of Bank Indebtedness which
has accepted such offer or (b) obtain the requisite consents under the Credit
Facility to permit the repurchase of the Securities as provided below. The
Company shall first comply with the covenant in the immediately preceding
sentence before it shall be required to repurchase Securities pursuant to the
provisions described below. The Company's failure to comply with this Section
4.8 shall constitute an Event of Default under Section 6.1(4) and not under
6.1(2).
(b) The Company shall disclose the occurrence of any
Change of Control Triggering Event by issuing a press release and filing a Form
8-K with the Commission. Within 30 days following the date the Company obtains
actual knowledge that a Change of Control Triggering Event has occurred, the
Company must send, by first class mail, a notice to each Holder, with a copy to
the Trustee, stating: (1) that a Change of Control Triggering Event has occurred
or may occur and that such Holder has, or upon such occurrence will have, the
right to require the Company to purchase such Holder's Securities at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of
Holders of record on a record date to receive interest on the relevant interest
payment date); (2) the circumstances and relevant facts and financial
information regarding such Change of Control Triggering Event; (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed) (the "Change of Control Payment Date"); (4)
the instructions determined by the Company, consistent with this Section 4.8,
that a Holder must follow in order to have its Securities purchased; and (5) if
such notice is mailed prior to the occurrence of a Change of Control Triggering
Event, that such offer is conditioned on the occurrence of such Change of
Control Triggering Event. Holders of the Securities electing to have a Security
purchased pursuant to a Change of Control Offer are required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the third business day prior to
the Change of Control Payment Date.
(c) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Securities pursuant to a Change of Control Offer. To the
extent that the provisions of any securities laws or regulations conflict with
this Section 4.8, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.8 by virtue thereof.
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SECTION 4.9. Prohibition on Incurrence of Senior
Subordinated Debt. Neither the Company nor any Subsidiary Guarantor will incur
or suffer to exist Indebtedness that is senior in right of payment to the
Securities or such Subsidiary Guarantor's Guarantee and subordinate in right of
payment to any Senior Indebtedness of the Company or such Subsidiary Guarantor,
as the case may be.
SECTION 4.10. Limitation on Preferred Stock of
Subsidiaries. The Company will not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Restricted
Subsidiary of the Company) or permit any Person (other than the Company or a
Restricted Subsidiary of the Company) to own any Preferred Stock of any
Restricted Subsidiary of the Company.
SECTION 4.11. Limitation on Guarantees by Restricted
Subsidiaries. The Company will not permit any of its Restricted Subsidiaries,
directly or indirectly, to guarantee the payment of any Indebtedness of the
Company, other than guarantees of Indebtedness incurred pursuant to the Credit
Facility (but only if such guarantees are permitted by clause (ii) of Section
4.3 or constitute Permitted Indebtedness), unless such Restricted Subsidiary,
the Company and the Trustee execute and deliver a supplemental indenture
evidencing such Restricted Subsidiary's guarantee of the Securities (a
"Guarantee"), such Guarantee to be a senior subordinated unsecured obligation of
such Restricted Subsidiary; provided that if (w) any Subsidiary Guarantor is
released from its guarantee with respect to Indebtedness outstanding under the
Credit Facility or other Indebtedness the guarantee of which gave rise to the
obligation to enter into its Guarantee; (x) the Company or any of its Restricted
Subsidiaries sells or otherwise disposes (by merger or otherwise) of any
Subsidiary Guarantor in accordance with this Indenture, following which such
Subsidiary Guarantor is no longer a Restricted Subsidiary, (y) any Subsidiary
Guarantor merges or consolidates with and into the Company or another Subsidiary
Guarantor that is the surviving Person of such merger or consolidation, or (z)
any Subsidiary Guarantor becomes an Unrestricted Subsidiary, such Subsidiary
Guarantor shall automatically be released from its obligations as a Subsidiary
Guarantor. Neither the Company nor any such Subsidiary Guarantor shall be
required to make a notation on the Securities to reflect any such Guarantee.
Nothing in this Section 4.11 shall be construed to permit any Restricted
Subsidiary of the Company to incur Indebtedness otherwise prohibited by Section
4.3.
The supplemental indenture evidencing each Guarantee will
provide that the obligations of each Subsidiary Guarantor under its Guarantee
will be limited to the maximum amount, as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor, result in the
obligations of such Subsidiary Guarantor under its Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under applicable law, or being void
or unenforceable under any law relating to insolvency of debtors.
SECTION 4.12. Conduct of Business. The Company and its
Restricted Subsidiaries will not engage in any businesses which are not the same
as, or similar, related or ancillary
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to, the businesses in which the Company and its Restricted Subsidiaries are
engaged on the Issue Date.
SECTION 4.13. Maintenance of Office or Agency. The Company
shall maintain the office or agency required under Section 2.3. The Company
shall give prior written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company 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 address of the Trustee set forth in Section
13.2.
SECTION 4.14. Corporate Existence. Except as otherwise
permitted by Article V, the Company shall do or cause to be done, at its own
cost and expense, all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents of each such Restricted Subsidiary and the material rights (charter
and statutory) and franchises of the Company and each such Restricted
Subsidiary; provided, however, that the Company shall not be required to
preserve, with respect to itself, any material right or franchise and, with
respect to any of its Restricted Subsidiaries, any such existence, material
right or franchise, if the Board of Directors of the Company shall determine in
good faith that the preservation thereof is no longer desirable in the conduct
of the business of the Company and the Subsidiaries, taken as a whole.
SECTION 4.15. Payment of Taxes and Other Claims. The
Company shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Restricted
Subsidiaries or properties of it or any of its Restricted Subsidiaries and (ii)
any lawful claims for labor, materials and supplies that, if unpaid, might by
law become a Lien upon the property of it or any of its Restricted Subsidiaries;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted for which
adequate reserves, to the extent required under GAAP, have been taken.
SECTION 4.16. Maintenance of Properties and Insurance. (a)
The Company shall, and shall cause each of its Restricted Subsidiaries to,
maintain its material properties in good working order and condition (subject to
ordinary wear and tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively conduct and carry
on its business; provided, however, that nothing in this Section 4.16 shall
prevent the Company or any of its Restricted Subsidiaries from discontinuing the
operation and maintenance of any of its properties, if such discontinuance is,
in the good faith judgment of the Company or the Restricted Subsidiary, as the
case may be, desirable in the conduct of their respective businesses and is not
disadvantageous in any material respect to the Holders.
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(b) The Company shall provide or cause to be provided,
for itself and each of its Restricted Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
good faith judgment of the Company, are adequate and appropriate for the conduct
of the business of the Company and such Restricted Subsidiaries of the Company
in a prudent manner, with reputable insurers or with the government of the
United States of America or any agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Company, for companies similarly situated in the
industry.
SECTION 4.17. Compliance With Laws. The Company shall
comply, and shall cause each of its Restricted Subsidiaries to comply, with all
applicable statutes, rules, regulations, orders and restrictions of the United
States of America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau, agency
and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except
for such noncompliances as are not in the aggregate reasonably likely to have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
SECTION 4.18. Additional Information. The Company will
deliver to the Trustee within 15 days after the filing of the same with the
Commission, copies of the quarterly and annual reports and of the information,
documents and other reports, if any, which the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will file
with the Commission, to the extent permitted, and provide the Trustee and
Holders with such annual reports and such information, documents and other
reports specified in Sections 13 and 15(d) of the Exchange Act. The Company will
also comply with the other provisions of TIA Section 314(a).
SECTION 4.19. Further Instruments and Acts. Upon request
of the Trustee, the Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE V
SUCCESSOR COMPANY
SECTION 5.1. When Company May Merge or Transfer Assets.
(a) The Company will not, in a single transaction or a series of related
transactions, consolidate with or merge with or into, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its assets to,
another Person or Persons unless:
(i) either (A) the Company shall be the survivor of such
merger or consolidation or (B) the surviving Person is a corporation
existing under the laws of the United States, any state thereof or the
District of Columbia and such surviving Person shall
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expressly assume all the obligations of the Company under the
Securities and this Indenture;
(ii) immediately after giving effect to such transaction (on
a pro forma basis, including any Indebtedness incurred or anticipated
to be incurred in connection with such transaction and the other
adjustments referred to in the definition of "Consolidated Fixed Charge
Coverage Ratio"), either (A) the Company or the surviving Person is
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.3 or (B) the
Consolidated Fixed Coverage Ratio would be greater than it was
immediately prior to such transaction;
(iii) immediately after giving effect to such transaction
(including any Indebtedness incurred or anticipated to be incurred in
connection with the transaction), no Default or Event of Default shall
have occurred and be continuing; and
(iv) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture, that
the surviving Person agrees to be bound thereby and by the Securities,
and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Company, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
Notwithstanding the foregoing clauses (ii) and (iii) above, (a) any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (b) the Company may merge
with an Affiliate that is (x) a corporation that has no material assets or
liabilities and which was incorporated solely for the purpose of reincorporating
the Company in another jurisdiction or (y) a Restricted Subsidiary of the
Company so long as all assets of the Company and the Restricted Subsidiaries
immediately prior to such transaction are owned by such Restricted Subsidiary
and its Restricted Subsidiaries immediately after the consummation thereof.
(b) Upon any consolidation, combination or merger or any
transfer of all or substantially all of the assets of the Company in accordance
with the foregoing, the surviving entity shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and the Securities with the same effect as if such surviving entity had been
named as such.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default"
occurs if:
(1) the Company defaults in any payment of interest
(including liquidated damages, if any, under the Registration Rights
Agreement) on any Security when the same becomes due and payable,
whether or not such payment shall be prohibited by Article X, and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon redemption or otherwise (including the failure to make a
payment to purchase Securities tendered, pursuant to a Change of
Control Offer or a Net Proceeds Offer), whether or not such payment
shall be prohibited by Article X;
(3) the Company defaults in the observance or performance
of the covenant set forth in Section 5.1;
(4) the Company defaults in the observance or performance
of any other covenant or agreement contained in this Indenture, which
default continues for a period of 30 days after the Company receives
written notice specifying the default (and demanding that such default
be remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Securities;
(5) the Company fails to pay at final maturity (giving
effect to any applicable grace periods and any extensions thereof) the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary (other than a Receivables Entity) of the Company, or the
acceleration of the final stated maturity of any such Indebtedness if
the aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default or failure
to pay principal at final maturity or which has been accelerated,
aggregates $25 million or more at any time;
(6) one or more judgments in an aggregate amount in
excess of $25 million shall have been rendered against the Company or
any of its Significant Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable, and in the event
such judgment is covered by insurance, an enforcement proceeding has
been commenced by any creditor upon such judgment which is not promptly
stayed;
(7) the Company or a Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
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(A) commences a voluntary case or proceeding;
(B) consents to the entry of judgment, decree or
order for relief against it in an involuntary case or
proceeding;
(C) consents to the appointment of a Custodian
of it or for any substantial part of its property;
(D) makes a general assignment for the benefit
of its creditors;
(E) consents to or acquiesces in the institution
of a bankruptcy or an insolvency proceeding against it; or
(F) takes any corporate action to authorize or
effect any of the foregoing;
or takes any comparable action under any foreign laws relating to
insolvency; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant any judgment, decree or order of
any to court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
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 Event of Default.
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SECTION 6.2. Acceleration. (a) If an Event of Default
(other than an Event of Default specified in 6.1(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Securities may declare the principal of and
accrued interest on all the Securities to be due and payable by notice in
writing to the Company and the Trustee specifying the respective Event of
Default and that it is a "notice of acceleration", and the same shall become
immediately due and payable.
(b) If an Event of Default specified in Sections 6.1(7)
and (8) with respect to the Company occurs and is continuing, then the principal
of and accrued interest on all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any holder of Securities.
(c) At any time after a declaration of acceleration with
respect to the Securities as described in Section 6.2(a) or (b) above, the
Holders of a majority in principal amount of the Securities may rescind and
cancel such declaration and its consequences (i) if the rescission would not
conflict with any judgment or decree, (ii) if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration, (iii) to the extent the payment
of such interest is lawful, interest on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iv) if the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (v) in the event of the cure or waiver of an
Event of Default of the type described in Section 6.1(6), (7) or (8), the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.
SECTION 6.3. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. Subject to Sections
6.7 and 9.2, the holders of a majority in principal amount of the Securities may
waive any existing Default or Event of Default under this Indenture, and its
consequences, except (i) a default in the payment of the principal of or
interest on any Securities or (ii) a Default or Event of Default in respect of a
provision that under Section 9.2 cannot be amended without the consent of each
Securityholder affected. When a Default or Event of Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any consequent right. This paragraph of this
Section 6.4 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
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Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this Indenture
and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Securities, but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.5. Control by Majority. The Holders of a
majority in principal amount of the Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1, that the Trustee determines is unduly prejudicial to the
rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action. This Section 6.5 shall be in lieu of
Section 316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the TIA is
hereby expressly excluded from this Indenture and the Securities, as permitted
by the TIA.
SECTION 6.6. Limitation on Suits. A Securityholder may
not pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25%; in outstanding principal
amount of the Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss, liability or
expense;
(4) the Trustee does not comply with the request within
45 days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 45-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
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SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, 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 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount then due and owing (together with interest on
any unpaid interest to the extent lawful) and the amounts provided for in
Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The
Trustee may 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 and the
Securityholders allowed in any judicial proceedings relative to the Company, its
Subsidiaries or their respective creditors or properties and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make 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 it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article VI, it shall pay out the money or
property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness to the extent
required by Article X;
THIRD: to Securityholders for amounts due and unpaid on the
Securities far principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
FOURTH: to the Company or any other obligors on the Securities
as their interests may appear, or as a court of competent jurisdiction
may direct.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Trustee shall mail to each Securityholder and the Company
a notice that states the record date, the payment date and amount to be paid.
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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 Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by
Holders of more than 10% in outstanding principal amount of the Securities.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise 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
(other than in the case of clause (2) below the Events of Default specified
therein):
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, including any such certificates or opinions furnished
in connection with an Event of Default under Section 6.1(3), (4) or
(6). However, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a) and (b) of this Section.
(d) 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.
(e) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder
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or in the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may rely
on 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 the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Trustee's conduct does
not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. 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 Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for the
Company's authorization to issue the Securities, or any statement of the Company
in this Indenture, the Offering Memorandum or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
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SECTION 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing the Trustee shall mail to each Securityholder
notice of the Default or Event of Default within 30 days after it occurs. Except
in the case of a Default or Event of Default in payment of principal of or
interest on any Security (including payments pursuant to the optional redemption
or required repurchase provisions of such Security, if any), the Trustee may
withhold the notice if and so long as its board of directors, the Executive
Committee of its board of directors or a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly
as practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a) if such a report is required by that section.
The Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports required by TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the Commission if required by law and each
stock exchange (if any) on which the Securities are listed. The Company agrees
to notify promptly the Trustee whenever the Securities become listed on any
stock exchange and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time reasonable compensation for its
services. 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 upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing-of notices to
Securityholders and reasonable costs of counsel retained by the Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition
to the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability or expense (including reasonable attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture (including this Section 7.7) and of defending itself
against any claims (whether asserted by any Securityholder, the Company or
otherwise). 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 hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith.
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To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities. The Trustee's right to
receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or indebtedness of the Company.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.1(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may
resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, 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.
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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion, consolidation or transfer to the Trustee shall succeed to the trusts
created by this Indenture, any of the Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, an successor to the Trustee may authenticate such Securities
either in the name of an predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Trustee
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published annual report of condition. The Trustee shall
comply with 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 other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding an 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.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities. (a)
The Company may terminate its obligations under the Securities and this
Indenture, except those obligations referred to in Section 8.1(b), if all
Securities previously authenticated and delivered (other than destroyed, lost or
stolen Securities which have been replaced or paid or Securities for whose
payment money has theretofore been deposited with the Trustee or the Paying
Agent in trust or segregated
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and held in trust by the Company and thereafter repaid to the Company, as
provided in Section 8.5) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder, or if:
(i) either (A) pursuant to Article III, the Company shall
have given notice to the Trustee and mailed a notice of redemption to
each Holder of the redemption of all of the Securities under
arrangements satisfactory to the Trustee for the giving of such notice
or (B) all Securities have otherwise become due and payable hereunder
or (C) all Securities will become due and payable at their stated
maturity within one year or are to be called for redemption within one
year under arrangements reasonably satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company;
(ii) the Company shall have irrevocably deposited or
caused to be deposited with the Trustee or a trustee satisfactory to
the Trustee, under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee, as trust funds in trust
solely for the benefit of the Holders for that purpose, money in such
amount as is sufficient without consideration of reinvestment of such
money, to pay principal of, premium on, if any, and interest on the
outstanding Securities to maturity or redemption, as the case may be;
provided that the Trustee shall have been irrevocably instructed to
apply such money to the payment of said principal, premium, if any, and
interest with respect to the Securities and, provided, further, that
from and after the time of deposit, the money deposited shall not be
subject to the rights of holders of Senior Indebtedness pursuant to the
provisions of Article X;
(iii) no Default or Event of Default with respect to this
Indenture or the Securities shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute
a default under, any other material instrument to which the Company is
a party or by which it is bound;
(iv) the Company shall have paid all other sums payable by
it hereunder; and
(v) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for the termination of the Company's
obligations under the Securities and this Indenture have been
satisfied. Such Opinion of Counsel shall also state that such
satisfaction and discharge does not result in a default under the
Credit Facility (if then in effect) or any other material agreement or
instrument then known to such counsel that binds or affects the
Company.
(b) Notwithstanding the foregoing paragraph, the
Company's obligations in Sections 2.2, 2.5, 2.6, 2.7, 2.8, 4.1, 4.13, 4.14,
4.15, 4.17, 7.7, 8.4, 8.5 and 8.6 shall survive until the Securities are no
longer outstanding pursuant to the last paragraph of Section 2.8. After the
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Securities are no longer outstanding, the Company's obligations in Sections 7.7,
8.4, 8.5 and 8.6 shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Securities and this Indenture except for those surviving obligations
specified above.
SECTION 8.2. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of the Board of Directors
of the Company, at any time, elect to have either paragraph (b) or (c) below be
applied to all outstanding Securities upon compliance with the conditions set
forth in Section 8.3.
(b) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (b), the Company shall,
subject to the satisfaction of the conditions set forth in Section 8.3, be
deemed to have been discharged from its obligations with respect to all
outstanding Securities on the date the conditions-set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.4 hereof and the other
Sections of this Indenture referred to in (i) through (iv) below, and to have
satisfied all its other obligations under such Securities and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), and the following provisions shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in Sections 8.3 and 8.4 hereof, and as more fully set forth in such
Sections, payments in respect of the principal of (and premium, if any, on) and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Article II and Section 4.13
hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith and (iv) this
Article VIII. The Holders of the Securities and any amounts deposited under
Section 8.3 hereof shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness
under Article X or otherwise. Subject to compliance with this Article VIII, the
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), the Company shall,
subject to the satisfaction of the conditions set forth in section 8.3 hereof,
be released from its obligations under the covenants contained in Sections 4.2
through 4.12 and Article V hereof with respect to the outstanding Securities on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities 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
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hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes) and Holders of the Securities and any
amounts deposited under Sections 8.3 and 8.4 hereof shall cease to be subject to
any obligations to, or the rights of, any holder of Senior Indebtedness under
Article X or otherwise. For this purpose, such Covenant Defeasance means that,
with respect to the outstanding Securities, the Company 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 any 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 6.1(3) hereof, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 8.3. Conditions to Defeasance. The Company may
exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(1) the Company irrevocably deposits with the Trustee, in
trust, for the benefit of the holders of the Securities cash in U.S.
dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay the
principal of, premium, if any, and interest on the Securities on the
stated date for payment thereof or on the applicable redemption date,
as the case may be; provided that the Trustee shall have received an
irrevocable written order from the Company instructing the Trustee to
apply such cash in U.S. dollars or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities;
(2) in the case of a Legal Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee 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 Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(3) in the case of a Covenant Defeasance, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the
Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
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(4) no Default or Event of Default or event which with
notice or lapse of time or both would become a Default or an Event of
Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default with respect to this Indenture resulting from the incurrence
of Indebtedness, all or a portion of which will be used to defease the
Securities concurrently with such incurrence) or insofar as Sections
6.1(7) and 6.1(8) hereof are concerned, at any time in the period
ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under
this Indenture or any other material agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(6) 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 over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(7) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities and this
Indenture as contemplated by this Article VIII have been complied with;
(8) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that (A) the trust funds will not be
subject to any rights of holders of Indebtedness of the Company other
than the Securities and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the
deposit and that no Holder is an insider of the Company, after the 91st
day following the deposit, the trust funds will not be subject to the
effect of an applicable bankruptcy insolvency, reorganization or
similar laws affecting creditors' rights generally; and
(9) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.4. Application of Trust Money. The Trustee or
Paying Agent shall hold in trust U.S. Legal Tender or U.S. Government
Obligations deposited with it pursuant to this Article VIII, and shall apply the
deposited U.S. Legal Tender and the money from U.S. Government Obligations in
accordance with this Indenture to the payment of principal of, premium, if any,
and interest on the Securities. The Trustee shall be under no Obligation to
invest
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said U.S. Legal Tender or U.S. Government obligations except as it may agree
with the Company.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Legal Tender or
U.S. Government Obligations deposited pursuant to Section 8.3 hereof or the
principal, premium, if any, 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 Securities.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
Company's request any U.S. Legal Tender or U.S. Government Obligations held by
it as provided in Section 8.3 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
SECTION 8.5. Repayment to Company. Subject to this
Article VIII, the Trustee and the Paying Agent shall promptly pay to the
Company, upon request any excess U.S. Legal Tender or U.S. Government
Obligations held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal
or interest that remains unclaimed for two years; provided that the Trustee or
such Paying Agent, before being required to make any payment, may at the expense
of the Company cause to be published once in a newspaper of general circulation
in the City of New York or mail to each Holder entitled to such money notice
that such money remains unclaimed and that after a date specified therein which
shall be at least 30 days from the date of such publication or mailing any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person.
SECTION 8.6. Reinstatement. If the Trustee or Paying
Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in
accordance with this Article VIII by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIII until such time as
the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or
U.S. Government Obligations in accordance with this Article VIII; provided that
if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the U.S. Legal Tender or U.S. Government Obligations held by the
Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency; provided that such amendment does not in the opinion of
the Trustee, adversely affect the rights of any Holder in any material
respect;
(2) to comply with Article V or to provide for the
assumption by a successor of the obligations of a Subsidiary Guarantor;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article X that would limit or
terminate the benefits available to any holder of Senior Indebtedness
(or Representatives therefor) under Article X;
(5) to add Guarantees with respect to the Securities or
to secure the Securities;
(6) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company;
(7) to comply with any requirements of the Commission in
connection with qualifying this Indenture under the TIA;
(8) to make any change that does not adversely affect the
rights of any Securityholder;
(9) to provide for the issuance of the Exchange
Securities, which will have terms substantially identical in all
material respects to the Initial Securities (except that the transfer
restrictions contained in the Initial Securities and provisions
relating to an increase in interest rates in the event the Securities
are not registered under the Securities Act will be modified or
eliminated, as appropriate), and which will be treated together with
any outstanding Initial Securities, as a single issue of securities;
(10) to secure the Securities pursuant to the requirements
of Section 4.2 or otherwise;
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(11) to confirm and evidence the release, termination or
discharge of any Guarantee or Lien with respect to or securing the
Securities when such release, termination or discharge is provided for
under this Indenture;
(12) to provide for or confirm the issuance of Additional
Notes (subject to compliance with Section 4.3); or
(13) to provide that any Indebtedness that becomes or will
become an obligation of a successor company or a Subsidiary Guarantor
pursuant to a transaction governed by the provisions of Section 5.1
(and that is not a Subordinated Obligation) is Senior Subordinated
Indebtedness for purposes of this Indenture;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 9.1.
SECTION 9.2. With Consent of Holders. Subject to Section
6.7, the Company, when authorized by a resolution of its Board of Directors, and
the Trustee may amend or supplement this Indenture or the Securities with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities. Subject to Section 6.7, the Holders of a majority in
principal amount of the outstanding Securities may waive compliance by the
Company with any provision of this Indenture or the Securities. However, without
the consent of the Holder of each Security affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.4, may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Security;
(3) reduce the principal of or change or have the effect
of changing the Stated Maturity of any Security, or change the date on
which any Securities may be subject to redemption or repurchase, or
reduce the redemption or repurchase price therefor;
(4) make any Security payable in money other than that
stated in the Security;
(5) make an change in provisions of this Indenture
protecting the right of each Holder to receive payment of principal of,
premium, if any, and interest on such Security on or after the due date
thereof or to bring suit to enforce such payment or permitting holders
of a majority in principal amount of the Securities to waive Defaults
or Events of Default (other than Defaults or Events of Default with
respect to the payment of principal of, premium, if any, or interest on
the Securities);
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(6) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer or make and consummate a Net Proceeds Offer with respect to any
Asset Sale that has been consummated or modify any of the provisions or
definitions with respect thereto; or
(7) modify Article X or the definitions used in Article X
of this Indenture to adversely affect the Holders in any material
respect.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article X of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent) consent to
such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.3. Compliance With Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the Trust
Indenture Act of 1939, as amended as then in effect.
SECTION 9.4. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Securityholder,
unless it makes a change described in any of clauses (1) through (7) of Section
9.2, in which case, the amendment or waiver shall bind only each Securityholder
who has consented to it and every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder; provided that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of, premium, if any, and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates without
the consent of such Holder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action de-
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scribed above or required or permitted to be taken pursuant to this Indenture.
If a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Securityholders at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action,
whether or not such Persons continue to be Holders after such record date. No
such consent shall become valid or effective more than 120 days after such
record date.
SECTION 9.5. Notation or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee
shall sign any amendment authorized pursuant to this Article IX if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
ARTICLE X
SUBORDINATION
SECTION 10.1. Agreement to Subordinate. The Company
agrees, and each Securityholder by accepting a Security agrees, that the
Indebtedness evidenced by the Securities is subordinated in right of payment, to
the extent and in the manner provided in this Article X, to the prior payment of
all Senior Indebtedness and that the subordination is for the benefit of and
enforceable by the holders of Senior Indebtedness. The Securities will also be
effectively subordinated to any Secured Indebtedness of the Company to the
extent of the value of the assets securing such Indebtedness, and to all
existing and future obligations of the Company's Subsidiaries. The Securities
shall in all respects rank pari passu with all other Senior Subordinated
Indebtedness of the Company and only Indebtedness of the Company which is Senior
Indebtedness will rank senior to the Securities in accordance with the
provisions set forth herein. All provisions of this Article X shall be subject
to Section 10.12.
SECTION 10.2. Liquidation, Dissolution, Bankruptcy. Upon
any payment or distribution of the assets or securities of the Company to
creditors upon a total or partial liquidation or dissolution or reorganization
or similar proceeding of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
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properties, or in an assignment for the benefit of creditors or any marshalling
of the assets and liabilities of the Company, whether voluntary or involuntary:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents of all Senior
Indebtedness before Securityholders shall be entitled to receive any
payment of principal of, premium, if any, or interest on or other
amounts with respect to the Securities; and
(2) until the Senior Indebtedness is paid in full in cash
or Cash Equivalents, any payment or distribution to which
Securityholders would be entitled but for this Article X shall be made
to holders of Senior Indebtedness as their interests may appear.
SECTION 10.3. Default on Senior Indebtedness. The Company
may not pay principal of, premium (if any) or interest on, or any other amount
in respect of, the Securities or make any deposit pursuant to Article VIII and
may not otherwise purchase, redeem or otherwise retire any Securities
(collectively, "pay the Securities") if any amount due in respect of any Senior
Indebtedness (including, without limitation any amount due as a result of
acceleration of the maturity thereof by reason of default or otherwise) has not
been paid in full in cash or Cash Equivalents unless the default has been cured
or waived and any such acceleration has been rescinded or such Senior
Indebtedness has been paid in full in cash or Cash Equivalents. However, the
Company may pay the Securities without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representative of the holders of the Designated Senior Indebtedness with respect
to which the events set forth in the immediately preceding sentence have
occurred and are continuing.
In addition, during the continuance of any default (other than
a payment default described in the first sentence of the immediately preceding
paragraph) with respect to any Designated Senior Indebtedness pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Securities for a period (a "Payment Blockage Period") commencing upon the
receipt by the Trustee (with a copy to the Company) of written notice (a
"Blockage Notice") of such default from the Representative of the holders of
such Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Company from the Person or Persons who gave such Blockage Notice, (ii) because
the default giving rise to such Blockage Notice and all other defaults with
respect to such Designated Senior Indebtedness shall have been cured or shall
have ceased to exist or (iii) because such Designated Senior Indebtedness has
been discharged or repaid in full in cash or Cash Equivalents).
Notwithstanding the provisions described in the immediately
preceding paragraph, unless any payment default described in the first sentence
of the second immediately preceding paragraph has occurred and is then
continuing, the Company may resume payments on the Securities after the end of
such Payment Blockage Period, including any missed payments.
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Not more than one Blockage Notice may be given in any consecutive 360-day
period, irrespective of the number of defaults with respect to Designated Senior
Indebtedness during such period. However, if any Blockage Notice within such
360-day period is given by or on behalf of any holders of Designated Senior
Indebtedness other than the Bank Indebtedness, a Representative of holders of
Bank Indebtedness may give another Blockage Notice within such period. In no
event, however, may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period, and there must be a 181 consecutive day period during
any 360 consecutive day period which no Payment Blockage Period is in effect.
SECTION 10.4. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company shall promptly notify the holders of the Designated Senior Indebtedness
or the Representative of such holders of the acceleration and provide copies of
such notices to the Trustee.
If any Designated Senior Indebtedness is outstanding at the
time of such acceleration, the Company may not pay the Securities until the
earlier of five Business Days after the holder or Representative of such
Designated Senior Indebtedness receives notice of such acceleration or the date
of acceleration of such Designated Senior Indebtedness and, thereafter, may pay
the Securities only if this Article X otherwise permits payments at that time.
SECTION 10.5. When Distribution Must Be Paid Over. If a
payment or distribution is made to Securityholders that because of this Article
X should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness and
promptly pay it over to them as their respective interests may appear.
SECTION 10.6. Subrogation. After all Senior Indebtedness
is paid in full in cash and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article X to holders of Senior Indebtedness which
otherwise would have been made to Securityholders is not, as between the Company
and Securityholders, a payment by the Company of Senior Indebtedness.
SECTION 10.7. Relative Rights. This Article X defines the
relative rights of Securityholders and holders of Senior Indebtedness. Nothing
in this Indenture shall:
(1) impair, as between the Company and Securityholders,
the obligation of the Company, which is absolute and unconditional, to
pay principal of and interest on the Securities in accordance with
their terms; or
(2) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Securityholders.
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SECTION 10.8. Subordination May Not Be Impaired by
Company. No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Securities 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.
SECTION 10.9. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.3, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it specifically
stating that payments may not be made under this Article X. The Company, the
Registrar or co-registrar, the Paying Agent, a Representative or a holder of
Senior Indebtedness may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article X with respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article VII shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article X shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article X Not To Prevent Events of Default
or Limit Right to Accelerate. The failure to make a payment in respect of the
Securities by reason of any provision in this Article X shall not be construed
as preventing the occurrence of a Default or Event of Default. Nothing in this
Article X shall have an effect on the right of the Securityholders or the
Trustee to accelerate the maturity of the Securities.
SECTION 10.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from money
or the proceeds of U.S. Legal Tender or U.S. Government Obligations held in
trust under Article VIII by the Trustee for the payment of principal of and
interest on the Securities shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restrictions set forth in this Article X,
and none of the Securityholders shall be obligated to pay over any such amount
to the Company, any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
SECTION 10.13. Trustee Entitled to Rely. Upon any payment
or distribution pursuant to this Article X, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.2
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii)
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upon the Representatives for the holders of Senior Indebtedness for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness 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 X.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article X, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article X, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of Sections 7.1 and
7.2 shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article X.
SECTION 10.14. Trustee to Effectuate Subordination. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness as provided in this Article X and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Securityholders or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article X or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness
on Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
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ARTICLE XI
[RESERVED]
ARTICLE XII
[RESERVED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. 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 13.2. Notices. Any notice or communication shall
be in writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Xxxxxx Scientific International Inc.
Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention of General Counsel
if to the Trustee:
X.X. Xxxxxx Trust Company, National Association
One Oxford Centre, Suite 1100
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Global Trust Services
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. Communication by Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 13.4. Certificate and Opinion As To Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company, upon
request, shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 13.5. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
SECTION 13.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or
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controlled by or under direct or indirect common control with the Company shall
be disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 13.7. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.8. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York or in the state in which the corporate trust
office of the Trustee is located. If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If a regular record date is a
Legal Holiday, the record date shall not be affected.
SECTION 13.9. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 13.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have a
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 13.11. Successors. All agreements of the Company
and the Subsidiary Guarantors in this Indenture and the Securities shall bind
their respective successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 13.12. Multiple 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. One signed copy is enough to
prove this Indenture.
SECTION 13.13. Variable Provisions. The company initially
appoints the Trustee as Paying Agent and Registrar and custodian with respect to
any Global Securities.
SECTION 13.14. Qualification Of Indenture. The Company
shall qualify this Indenture under the TIA in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys' fees for the Company, the Trustee and
the Holders) incurred in connection therewith, including, but not lim-
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ited to, costs and expenses of qualification of this Indenture and the
Securities and printing this Indenture and the Securities. 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.
SECTION 13.15. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By: _______________________________
Name:
Title:
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: _______________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF TRANSFER RESTRICTED SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(K)
(OR ANY SUCCESSOR PROVISION THEREOF) AS PERMITTING THE RESALE BY NON-AFFILIATES
OF RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY, ANY GUARAN-
A-1
TOR OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE"), ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A 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, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" ("IAI") WITHIN THE
MEANING OF SUBPARAGRAPH (A) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN IAI, IN EACH CASE, IN A TRANSACTION INVOLVING A MINIMUM PURCHASE PRICE OF
$250,000 FOR SUCH SECURITIES, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHERWISE IN COMPLIANCE WITH
OTHER APPLICABLE LAWS, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[Regulation S Securities Legend](a)
[UNTIL THE EXPIRATION OF THE "40 DAY DISTRIBUTION COMPLIANCE
PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE
SECURITIES ACT), BENEFICIAL OWNERSHIP INTERESTS IN THIS SECURITY MAY ONLY BE
SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS OPERATOR OF
THE EUROCLEAR SYSTEM, OR CLEARSTREAM BANKING, SOCIETE ANONYME. THIS LEGEND WILL
BE REMOVED UPON THE EXPIRATION OF SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD.]
---------------------------
(a) To be included on each Security certificate evidencing Securities sold
in offshore transactions to non-U.S. persons in reliance on Regulation
S promulgated under the Securities Act until the 40th day after the
Issue Date.
A-2
XXXXXX SCIENTIFIC INTERNATIONAL INC.
No. Principal Amount $
CUSIP NO.
8% Senior Subordinated Note due 2013
Xxxxxx Scientific International Inc., a Delaware corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum of
on September 1, 2013.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Additional provisions of this Security are set forth on the
other side of this Security.
A-3
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: XXXXXX SCIENTIFIC INTERNATIONAL INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By: ____________________________
Authorized Signatory
A-4
(Reverse of Security)
8% Senior Subordinated Note due 2013
1. Interest
Xxxxxx Scientific International Inc., a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above.
The Company will pay interest semiannually on March 1 and
September 1 of each year, commencing [ ]. Interest on the Securities will
accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from the date of issuance. The
Company shall pay interest on overdue principal or premium, if any, and interest
at the rate borne by the Securities to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 10:00 A.M. (New York City time) on the date on
which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except defaulted interest) to the Persons who are registered
Holders of Securities at the close of business on the February 15 and August 15
immediately preceding the interest payment date even if Securities are canceled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay principal and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. Paying Agent and Registrar
Initially, X.X. Xxxxxx Trust Company, National Association, a
national banking association duly organized and existing under the laws of the
United States (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Securityholder. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
A-5
4. Indenture
The Company issued the Securities under an Indenture dated as
of August 20, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Initial Securities, the Exchange Securities and any
Additional Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the payment of
dividends and other distributions on the Capital Stock of the Company and its
Restricted Subsidiaries, the sale or transfer of assets and Capital Stock of
Restricted Subsidiaries, the investments of the Company, its Subsidiaries and
transactions with Affiliates, Liens, dividends and other payment restrictions
affecting Subsidiaries, incurrence of senior subordinated Indebtedness,
preferred stock of Subsidiaries and future guarantees. In addition, the
Indenture limits the ability of the Company and its Restricted Subsidiaries to
restrict distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
(a) At any time prior to September 1, 2008, the
Securities may be redeemed or purchased (by the Company or any other Person) in
whole or in part, at the Company's option, at a price (the "Redemption Price")
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date. The Company may provide in such notice that
payment of the Redemption Price and performance of its obligations with respect
to such redemption or purchase may be performed by another Person. Any such
redemption, purchase or notice may, at the Company's discretion, be subject to
the satisfaction of one or more conditions precedent, including but not limited
to the occurrence of a Change of Control Triggering Event.
"Applicable Premium" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the then outstanding principal
amount of such Security and (ii) the excess of (A) the present value at such
Redemption Date of (1) the redemption price of such Security on September 1,
2008 (such redemption price being that described below in clause (b)), plus (2)
all required remaining scheduled interest payments due on such Security through
such date,
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in each case computed using a discount rate equal to the Treasury Rate plus 50
basis points, over (B) the principal amount of such Security on such Redemption
Date. Calculation of the Applicable Premium will be made by the Company or on
the Company's behalf by such Person as the Company shall designate; provided
that such calculation shall not be a duty or obligation of the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the
yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to such Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source or
similar market data)) most nearly equal to the period from such Redemption Date
to September 1, 2008; provided, however, that if the period from the Redemption
Date to such date is not equal to the constant maturity of the United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States securities for which
such yields are given, except that if the period from the Redemption Date to
such date is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
(b) In addition, on and after September 1, 2008, the
Securities will be redeemable, at the Company's option, in whole at any time or
in part from time to time, upon not less than 30 nor more than 60 days prior
notice mailed by first class mail to each Holder's registered address, at the
following redemption prices (expressed as percentages of principal amount) if
redeemed during the twelve month period commencing on September 1 of the year
set forth below plus, in each case, accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2008................................................. 104.000%
2009................................................. 102.667%
2010................................................. 101.333%
2011 and thereafter.................................. 100.000%
The Company may provide in such notice that payment of the redemption price and
performance of its obligations with respect to such redemption or purchase may
be performed by another Person. Any such redemption, purchase or notice may, at
the Company's discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the occurrence of a Change of
Control Triggering Event.
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(c) Notwithstanding the foregoing, at any time, or from
time to time, on or prior to September 1, 2006, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings to redeem up to 40% of
the aggregate principal amount of Securities originally issued at a redemption
price equal to 108.000% of the principal amount thereof plus accrued interest to
the date of redemption; provided that at least 60% of the original principal
amount of Securities remains outstanding immediately after any such redemption
(excluding any Securities owned by the Company). In order to effect the
foregoing redemption with the proceeds of any Equity Offering, the Company must
mail a notice of redemption no later than 60 days after the related Equity
Offering and must consummate such redemption within 90 days of the closing of
the Equity Offering.
6. Notice of Redemption
Notice of redemption pursuant to the foregoing paragraph 5
will be mailed at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his registered address. If
fewer than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances; provided,
however, that if a partial redemption is made with the proceeds of an Equity
Offering, selection of the Securities or portion thereof for redemption shall be
made by the Trustee only on a pro rata basis, unless such method is otherwise
prohibited. Securities in denominations of principal amount larger than $1,000
may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Option of Holder to Elect Purchase
Upon a Change of Control Triggering Event, any Holder of
Securities will have the right to require that the Company purchase all or a
portion of such Holder's Securities pursuant to the Indenture at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company or a Restricted Subsidiary from an Asset Sale
are not used (a) to prepay any Senior Indebtedness and, in the case of any
Senior Indebtedness under any revolving credit facility, effect a permanent
reduction in the availability under such revolving credit facility, (b) to
reinvest in Productive Assets or (c) a combination of prepayment and investment
permitted by the foregoing clauses (a) and (b), then such aggregate amount of
Net Cash Proceeds which have not been
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applied on or before such Net Proceeds Offer Trigger Date shall be applied by
the Company or such Restricted Subsidiary to make an offer to purchase on a date
not less than 30 nor more than 45 days following the applicable Net Proceeds
Offer Trigger Date from all Holders on a pro rata basis that amount of
Securities equal to the Note Offer Amount at a price in cash equal to 100% of
the principal amount of the Securities to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Company agrees,
and each Securityholder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give them
effect and appoints the Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Security for a period beginning (i) 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem Securities and
ending at the close of business on the day of such mailing or (ii) 15 Business
Days before an interest payment date and ending on such interest payment date.
10. Persons Deemed Owners
The registered holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Defeasance; Discharge
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of prin-
A-9
cipal of, premium, if any, and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company, and the
Trustee may amend the Indenture or the Securities to, among other things set
forth in the Indenture, cure any ambiguity, omission, defect or inconsistency,
or to make any change that does not adversely affect the rights of any
Securityholder, or to provide for the issuance of Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon required repurchase, upon declaration or otherwise;
(iii) failure by the Company to comply with other agreements in the Indenture or
the Securities, in certain cases subject to notice and lapse of time; (iv)
failure to pay at final maturity (giving effect to any applicable grace period
and any extensions thereof) the principal amount of any Indebtedness of the
Company or any Restricted Subsidiary (other than a Receivables Entity) of the
Company, or the acceleration of the final maturity of any such Indebtedness, if
the aggregate principal amount of any such Indebtedness, together with the
principal amount of any such other Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates $25.0
million or more at any time; (v) certain events of bankruptcy or insolvency with
respect to the Company or any Significant Subsidiary; and (vi) certain final,
non-appealable judgments or decrees for the payment of money in excess of $25.0
million against the Company or any Significant Subsidiary. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being due and payable immediately
upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
A-10
15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
19. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. [Registration Rights.
Pursuant to the Registration Rights Agreement by and among the
Company and certain initial purchasers of the Securities evidenced by this
Security, the Company will be obligated to consummate an exchange offer pursuant
to which the Holder of this Security shall have, subject to the conditions set
forth in the Registration Rights Agreement, the right to exchange
A-11
this Security for another series of 8% Senior Subordinated Notes due 2013 of the
Company (herein called the "Exchange Securities"), which have been registered
under the Securities Act of 1933, as amended, in like principal amount and
having identical terms as the Securities (other than as set forth in this
paragraph). The Holders of Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.](a)
21. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Xxxxxx Scientific International Inc., Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxxxxx
00000, Attention: General Counsel.
22. Mandatory Redemption
[The Company shall be required to redeem all of the Securities
at a redemption price in cash equal to 101% of the principal amount thereof
together with accrued and unpaid interest to the date of redemption if the
Company has not acquired more than 50% of the outstanding shares of Perbio
Science AB prior to the 180th day after the Issue Date. The redemption date will
be up to the 10th day after the end of such 180 day period. The Company's
failure to comply with this paragraph shall constitute an Event of Default under
Section 6.1(2) of the Indenture.](b)
---------------
(a) To be included in certificates evidencing the Initial Notes issued on
the Issue Date. Additional Securities issued as Transfer Restricted
Securities may have a comparable provision inserted here.
(b) To be included in certificates evidencing the Initial Notes issued on
the Issue Date.
A-12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
_____________________________________________________
_____________________________________________________
(Print or type assignee's name, address and zip code)
_____________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ______________ Your Signature: ______________________
Signature Guarantee: ______________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
[ ] acquired for the undersigned's own account,
without transfer (in satisfaction of Section
2.6(a)(ii)(A) or Section 2.6(b)(ii) of the
Indenture); or
[ ] transferred to the Company; or
[ ] transferred pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
[ ] transferred pursuant to an effective registration
statement under the Securities Act; or
A-13
[ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
[ ] transferred to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933), that has furnished to
the Trustee a signed letter containing certain
representations and agreements (the form of which
letter appears as Exhibit C to the Indenture); or
[ ] transferred pursuant to another available exemption
from the registration requirements of the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
______________________________________
Signature
Signature Guarantee:
______________________________ ______________________________________
(Signature must be guaranteed) Signature
A-14
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of this Global Signature of authorized
Date of Amount of decrease in Principal Amount of increase in Principal Security following such de- officer of Trustee or
Exchange Amount of this Global Security Amount of this Global Security crease or increase Securities Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.6 or 4.8 of the Indenture, state
the amount in principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature _____________________________________________
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee: _____________________________________
(Signature must be guaranteed)
A-16
EXHIBIT B
[FORM OF FACE OF REGISTERED SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
B-1
XXXXXX SCIENTIFIC INTERNATIONAL INC.
No. __ Principal Amount
CUSIP NO.
8% Senior Subordinated Note due 2013
Xxxxxx Scientific International Inc., a Delaware corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum of
Dollars on September 1, 2013.
Interest Payment Dates: March 1 and September 1.
Record Dates: February 15 and August 15.
Additional provisions of this Security are set forth on the
other side of this Security.
B-2
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: XXXXXX SCIENTIFIC INTERNATIONAL INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By: __________________________
Authorized Signatory
B-3
(Reverse of Security)
8% Senior Subordinated Note due 2013
1. Interest
Xxxxxx Scientific International Inc., a Delaware corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above.
The Company will pay interest semiannually on March 1 and
September 1 of each year, commencing [ ]. Interest on the Securities will
accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from the earlier of the most recent
date on which interest was paid on the Initial Securities or, if no such
interest has been paid, from the date of issuance of the Initial Securities. The
Company shall pay interest on overdue principal or premium, if any, and interest
at the rate borne by the Securities to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 10:00 A.M. (New York City time) on the date on
which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except defaulted interest) to the Persons who are registered
Holders of Securities at the close of business on the February 15 and August 15
immediately preceding the interest payment date even if Securities are canceled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay principal and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. Paying Agent and Registrar
Initially, X.X. Xxxxxx Trust Company, National Association, a
national banking association duly organized and existing under the laws of the
United States (the "Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Securityholder. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
B-4
4. Indenture
The Company issued the Securities under an Indenture dated as
of August 20, 2003 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Initial Securities, the Exchange Securities and any
Additional Securities are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the incurrence of
Indebtedness by the Company and its Restricted Subsidiaries, the payment of
dividends and other distributions on the Capital Stock of the Company and its
Restricted Subsidiaries, the sale or transfer of assets and Capital Stock of
Restricted Subsidiaries, the investments of the Company, its Subsidiaries and
transactions with Affiliates, Liens, dividends and other payment restrictions
affecting Subsidiaries, incurrence of senior subordinated Indebtedness,
preferred stock of Subsidiaries and future guarantees. In addition, the
Indenture limits the ability of the Company and its Restricted Subsidiaries to
restrict distributions and dividends from Restricted Subsidiaries.
5. Optional Redemption
(a) At any time prior to September 1, 2008, the
Securities may be redeemed or purchased (by the Company or any other Person) in
whole or in part, at the Company's option, at a price (the "Redemption Price")
equal to 100% of the principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest, if any, to, the date of redemption or purchase
(the "Redemption Date") (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date). Such redemption or purchase may be made upon notice mailed by first-class
mail to each Holder's registered address, not less than 30 nor more than 60 days
prior to the Redemption Date. The Company may provide in such notice that
payment of the Redemption Price and performance of its obligations with respect
to such redemption or purchase may be performed by another Person. Any such
redemption, purchase or notice may, at the Company's discretion, be subject to
the satisfaction of one or more conditions precedent, including but not limited
to the occurrence of a Change of Control Triggering Event.
"Applicable Premium" means, with respect to a Security at any
Redemption Date, the greater of (i) 1.0% of the then outstanding principal
amount of such Security and (ii) the excess of (A) the present value at such
Redemption Date of (1) the redemption price of such Security on September 1,
2008 (such redemption price being that described below in clause (b)), plus (2)
all required remaining scheduled interest payments due on such Security through
such date,
B-5
in each case computed using a discount rate equal to the Treasury Rate plus 50
basis points, over (B) the principal amount of such Security on such Redemption
Date. Calculation of the Applicable Premium will be made by the Company or on
the Company's behalf by such Person as the Company shall designate; provided
that such calculation shall not be a duty or obligation of the Trustee.
"Treasury Rate" means, with respect to a Redemption Date, the
yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to such Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source or
similar market data)) most nearly equal to the period from such Redemption Date
to September 1, 2008; provided, however, that if the period from the Redemption
Date to such date is not equal to the constant maturity of the United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States securities for which
such yields are given, except that if the period from the Redemption Date to
such date is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
(b) In addition, on and after September 1, 2008, the
Securities will be redeemable, at the Company's option, in whole at any time or
in part from time to time, upon not less than 30 nor more than 60 days prior
notice mailed by first class mail to each Holder's registered address, at the
following redemption prices (expressed as percentages of principal amount) if
redeemed during the twelve month period commencing on September 1 of the year
set forth below plus, in each case, accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2008................................................. 104.000%
2009................................................. 102.667%
2010................................................. 101.333%
2011 and thereafter.................................. 100.000%
The Company may provide in such notice that payment of the redemption price and
performance of its obligations with respect to such redemption or purchase may
be performed by another Person. Any such redemption, purchase or notice may, at
the Company's discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the occurrence of a Change of
Control Triggering Event.
B-6
(c) Notwithstanding the foregoing, at any time, or from
time to time, on or prior to September 1, 2006, the Company may, at its option,
use the net cash proceeds of one or more Equity Offerings to redeem up to 40% of
the aggregate principal amount of Securities originally issued at a redemption
price equal to 108.000% of the principal amount thereof plus accrued interest to
the date of redemption; provided that at least 60% of the original principal
amount of Securities remains outstanding immediately after any such redemption
(excluding any Securities owned by the Company). In order to effect the
foregoing redemption with the proceeds of any Equity Offering, the Company must
mail a notice of redemption no later than 60 days after the related Equity
Offering and must consummate such redemption within 90 days of the closing of
the Equity Offering.
6. Notice of Redemption
Notice of redemption pursuant to the foregoing paragraph 5
will be mailed at least 30 days but not more than 60 days before the redemption
date to each Holder of Securities to be redeemed at his registered address. If
fewer than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances; provided,
however, that if a partial redemption is made with the proceeds of an Equity
Offering, selection of the Securities or portion thereof for redemption shall be
made by the Trustee only on a pro rata basis, unless such method is otherwise
prohibited. Securities in denominations of principal amount larger than $1,000
may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued and unpaid interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Option of Holder to Elect Purchase
Upon a Change of Control Triggering Event, any Holder of
Securities will have the right to require that the Company purchase all or a
portion of such Holder's Securities pursuant to the Indenture at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued
interest to the date of repurchase as provided in, and subject to the terms of,
the Indenture.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company or a Restricted Subsidiary from an Asset Sale
are not used (a) to prepay any Senior Indebtedness and, in the case of any
Senior Indebtedness under any revolving credit facility, effect a permanent
reduction in the availability under such revolving credit facility, (b) to
reinvest in Productive Assets or (c) a combination of prepayment and investment
permitted by the foregoing clauses (a) and (b), then such aggregate amount of
Net Cash Proceeds which have not been
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applied on or before such Net Proceeds Offer Trigger Date shall be applied by
the Company or such Restricted Subsidiary to make an offer to purchase on a date
not less than 30 nor more than 45 days following the applicable Net Proceeds
Offer Trigger Date from all Holders on a pro rata basis that amount of
Securities equal to the Note Offer Amount at a price equal in cash to 100% of
the principal amount of the Securities to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Company agrees,
and each Securityholder by accepting a Security agrees, to the subordination
provisions contained in the Indenture and authorizes the Trustee to give them
effect and appoints the Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Security for a period beginning (i) 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem Securities and
ending at the close of business on the day of such mailing or (ii) 15 Business
Days before an interest payment date and ending on such interest payment date.
10. Persons Deemed Owners
The registered holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Defeasance; Discharge
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of prin-
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cipal of, premium, if any, and interest on the Securities to redemption or
maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company, and the
Trustee may amend the Indenture or the Securities to, among other things set
forth in the Indenture, cure any ambiguity, omission, defect or inconsistency,
or to make any change that does not adversely affect the rights of any
Securityholder, or to provide for the issuance of Exchange Securities.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption pursuant to paragraph 5
of the Securities, upon required repurchase, upon declaration or otherwise;
(iii) failure by the Company to comply with other agreements in the Indenture or
the Securities, in certain cases subject to notice and lapse of time; (iv)
failure to pay at final maturity (giving effect to any applicable grace period
and any extensions thereof) the principal amount of any Indebtedness of the
Company or any Restricted Subsidiary (other than a Receivables Entity) of the
Company, or the acceleration of the final maturity of any such Indebtedness, if
the aggregate principal amount of any such Indebtedness, together with the
principal amount of any such other Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates $25.0
million or more at any time; (v) certain events of bankruptcy or insolvency with
respect to the Company or any Significant Subsidiary; and (vi) certain final,
non-appealable judgments or decrees for the payment of money in excess of $25.0
million against the Company or any Significant Subsidiary. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being due and payable immediately
upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
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15. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
19. 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 Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Xxxxxx Scientific International Inc., Xxx Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxxxxx
00000, Attention: General Counsel.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
____________________________________________________
____________________________________________________
____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: ____________________ Your Signature: _______________________
Signature Guarantee: ______________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of this Global Signature of authorized
Date of Amount of decrease in Principal Amount of increase in Principal Security following such de- officer of Trustee or
Exchange Amount of this Global Security Amount of this Global Security crease or increase Securities Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.6 or 4.8 of the Indenture, state
the amount in principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature _______________________________________________
(Sign exactly as your name appears on the other
side of the Security)
Signature Guarantee: _____________________________________
(Signature must be guaranteed)
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EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTORS
_______________________,_______
X.X. Xxxxxx Trust Company, N.A.
One Oxford Centre, Suite 1100
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Global Trust Services
Re: Xxxxxx Scientific International Inc. (the "Company")
8% Senior Subordinated Notes due 2013 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes of the
Company, we confirm that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in the
Indenture dated as of August 20, 2003 relating to the Notes (the "Indenture")
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered
under the Securities Act or any other applicable securities law, and that the
Notes may not be offered, sold or otherwise transferred except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should offer,
sell, transfer, pledge, hypothecate or otherwise dispose of any Notes within two
years after the original issuance of the Notes, we will do so only (A) to the
Company, (B) inside the United States to a "qualified institutional buyer" in
compliance with Rule 144A under the Securities Act, (C) inside the United States
to an institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes to you a signed letter substantially in the form of this
letter, (D) outside the United States to a foreign person in compliance with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the exemption
from registration provided by Rule 144 under the Securities Act (if available),
(F) in accordance with another exemption from the registration requirements of
the Securities Act, or (G) pursuant to an effective registration statement under
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the Securities Act, and we further agree to provide to any person purchasing any
of the Notes from us a notice advising such purchaser that resales of the Notes
are restricted as stated herein and in the Indenture.
3. We understand that, on any proposed transfer of any
Notes prior to the later of the original issue date of the Notes and the last
date the Notes were held by an affiliate of the Company pursuant to paragraphs
2(C), 2(D) and 2(E) above, we will be required to furnish to you and the Company
such certifications, legal opinions and other information as you and the Company
may reasonably require to confirm that the proposed transfer complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are acquiring the Notes for investment
purposes and not with a view to, or offer or sale in connection with, any
distribution in violation of the Securities Act, and we are each able to bear
the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for our
own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
(Name of Transferee)
By: __________________________________
Authorized Signature
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