Exhibit 4.1
================================================================================
XXXXXX SCIENTIFIC INTERNATIONAL INC., as Issuer
8 1/8% Senior Subordinated Notes due 2012
---------------
INDENTURE
Dated as of April 24, 2002
---------------
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
================================================================================
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
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
------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions 1
SECTION 1.2. Other Definitions..............................................24
SECTION 1.3. Incorporation by Reference of Trust Indenture Act..............25
SECTION 1.4. Rules of Construction..........................................25
ARTICLE II THE SECURITIES
SECTION 2.1. Form and Dating................................................26
SECTION 2.2. Execution and Authentication...................................27
SECTION 2.3. Registrar and Paying Agent.....................................28
SECTION 2.4. Paying Agent to Hold Money in Trust............................29
SECTION 2.5. Securityholder Lists...........................................29
SECTION 2.6. Transfer and Exchange..........................................29
SECTION 2.7. Replacement Securities.........................................35
SECTION 2.8. Outstanding Securities.........................................35
SECTION 2.9. Temporary Securities...........................................36
SECTION 2.10. Cancellation 36
SECTION 2.11. Defaulted Interest............................................36
SECTION 2.12. CUSIP Numbers.................................................37
SECTION 2.13. Issuance of Additional Securities.............................37
ARTICLE III REDEMPTION
SECTION 3.1. Notices to Trustee.............................................38
SECTION 3.2. Selection of Securities To be Redeemed.........................38
SECTION 3.3. Notice of Redemption...........................................38
SECTION 3.4. Effect of Notice of Redemption.................................39
SECTION 3.5. Deposit of Redemption Price....................................39
SECTION 3.6. Securities Redeemed in Part....................................40
ARTICLE IV COVENANTS
SECTION 4.1. Payment of Securities..........................................40
SECTION 4.2. Limitation on Liens............................................40
SECTION 4.3. Limitation on Incurrence of Additional Indebtedness............41
SECTION 4.4. Limitation on Restricted Payments..............................41
SECTION 4.5. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.........................................43
SECTION 4.6. Limitation on Asset Sales......................................44
SECTION 4.7. Limitation on Transactions with Affiliates.....................46
SECTION 4.8. Change of Control..............................................48
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...............................49
SECTION 4.14. Corporate Existence...........................................49
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........................................56
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
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...................................60
SECTION 7.4. Trustee's Disclaimer...........................................60
SECTION 7.5. Notice of Defaults.............................................60
SECTION 7.6. Reports by Trustee to Holders..................................60
SECTION 7.7. Compensation and Indemnity.....................................61
SECTION 7.8. Replacement of Trustee.........................................61
SECTION 7.9. Successor Trustee by Merger....................................62
SECTION 7.10. Eligibility; Disqualification.................................63
SECTION 7.11. Preferential Collection of Claims Against Company.............63
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Securities...........................63
SECTION 8.2. Legal Defeasance and Covenant Defeasance.......................64
SECTION 8.3. Conditions to Defeasance.......................................66
SECTION 8.4. Application of Trust Money.....................................67
SECTION 8.5. Repayment to Company...........................................68
SECTION 8.6. Reinstatement 68
ARTICLE IX AMENDMENTS
SECTION 9.1. Without Consent of Holders.....................................69
SECTION 9.2. With Consent of Holders........................................70
SECTION 9.3. Compliance With Trust Indenture Act............................71
SECTION 9.4. Revocation and Effect of Consents and Waivers..................71
SECTION 9.5. Notation on or Exchange of Securities..........................72
SECTION 9.6. Trustee to Sign Amendments.....................................72
ARTICLE X SUBORDINATION
SECTION 10.1. Agreement to Subordinate......................................72
SECTION 10.2. Liquidation, Dissolution, Bankruptcy..........................72
SECTION 10.3. Default on Senior Indebtedness................................73
SECTION 10.4. Acceleration of Payment of Securities.........................74
SECTION 10.5. When Distribution Must Be Paid Over...........................74
SECTION 10.6. Subrogation 74
SECTION 10.7. Relative Rights...............................................74
SECTION 10.8. Subordination May Not Be Impaired by Company..................75
SECTION 10.9. Rights of Trustee and Paying Agent............................75
SECTION 10.10. Distribution or Notice to Representative.....................75
SECTION 10.11. Article X Not To Prevent Events of Default or
Limit Right to Accelerate....................................75
SECTION 10.12. Trust Moneys Not Subordinated.................................75
SECTION 10.13. Trustee Entitled to Rely.....................................76
SECTION 10.14. Trustee to Effectuate Subordination..........................76
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.....76
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions.....................................76
ARTICLE XI [RESERVED]
ARTICLE XII [RESERVED]
ARTICLE XIII MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls..................................77
SECTION 13.2. Notices 77
SECTION 13.3. Communication by Holders With Other Holders...................78
SECTION 13.4. Certificate and Opinion As To Conditions Precedent............78
SECTION 13.5. Statements Required in Certificate or Opinion.................78
SECTION 13.6. When Securities Disregarded...................................79
SECTION 13.7. Rules by Trustee, Paying Agent and Registrar..................79
SECTION 13.8. Legal Holidays................................................79
SECTION 13.9. Governing Law.................................................79
SECTION 13.10. No Recourse Against Others...................................79
SECTION 13.11. Successors 80
SECTION 13.12. Multiple Originals...........................................80
SECTION 13.13. Variable Provisions..........................................80
SECTION 13.14. Qualification of Indenture...................................80
SECTION 13.15. Table of Contents; Headings..................................80
EXHIBITS
EXHIBIT A FORM OF TRANSFER RESTRICTED SECURITY
EXHIBIT B FORM OF REGISTERED SECURITY
INDENTURE dated as of April 24, 2002, 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 1/8% Senior Subordinated
Notes due 2012 (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 1/8% Senior Subordinated Notes due
2012 (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 April 17, 2002, among the
Company, X.X. Xxxxxx Securities Inc., Credit Suisse First Boston
Corporation and Deutsche Bank Securities Inc. (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, or in anticipation or
contemplation of, 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 1/8% Senior Subordinated Notes due
2012 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 issuances
pursuant to Sections 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 referent Person. 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.
"Applicable Premium" means, with respect to a Security,
the greater of (i) 1.0% of the then outstanding principal amount of such
Security or (ii) the excess of (A) the present value of the required
interest and principal payments due on such Security, computed using a
discount rate equal to the Treasury Rate plus 50 basis points, over (B) the
then outstanding principal amount of such Security; provided that in no
event will the Applicable Premium exceed the amount of the applicable
redemption price upon an optional redemption less 100% at any time on or
after May 1, 2007.
"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 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 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, (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 and (xi) the sale, issuance or transfer
of Capital Stock representing up to 30% of the fully-diluted equity
ownership of one or more of (a) Xxxxxx Technology Group Inc., (b) UniKix
Technologies, (c) Electronic Commerce Division and (d) Strategic
Procurement Services to one or more of their respective directors or
employees in connection with the compensation of such employees. 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 New 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.
"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.
"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.
"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 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 New 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 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 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, (D) cash
charges attributable to the exercise of employee options that vested upon
the consummation of the Recapitalization and (E) for any four quarter
period that includes one or more fiscal quarters of fiscal 2001 or 2002,
cash restructuring or nonrecurring charges, in an aggregate amount not to
exceed $20 million.
"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, (iii)
[Reserved], and (iv) 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 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 (iv) 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
costs relating to the Recapitalization 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 the ordinary course of business) 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 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 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, 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 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, (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 of the Company is subject to clause (e) above,
(h) one time non-cash compensation charges, including any arising from
existing stock options resulting from any merger or recapitalization
transaction and (i) bonus payments paid to senior management of the Company
following the Recapitalization in an aggregate amount not to exceed $10
million.
"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).
"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.
"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.
"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 an offering of Qualified Capital
Stock of the Company.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Existing Notes" means any of the Company's existing 9%
Senior Subordinated Notes due 2008 issued under the indenture dated January
21, 1998 or the indenture dated November 20, 1998.
"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.
"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 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. 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. If the Company or any Restricted Subsidiary of the
Company sells or otherwise disposes of any Common Stock of any direct or
indirect Restricted Subsidiary of the Company such that, after giving
effect to any such sale or disposition, the Company no longer owns,
directly or indirectly, 50% of the outstanding Common Stock of such
Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair
market value of the Common Stock of such Restricted Subsidiary not sold or
disposed of.
"Investors" means one or more of (i) Xxxxxxx Xxxxx Kecalp
L.P. 1997, (ii) Kecalp Inc., (iii) ML IBK Positions, Inc., (iv) Chase
Equity Associates, L.P., (v) DLJ Merchant Banking Xxxxxxxx XX, X.X., XXX
Xxxxxxxx Xxxxxxxx XX, X.X., XXX Diversified Partners, L.P., DLJMB Funding
II, Inc., DLJ Merchant Banking Partners II-A, L.P., DLJ Diversified
Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners-A,
L.P., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P. and DLJ
First ESC, LLC, (vi) members of management of the Company and (vii) any
Affiliate of any of the foregoing.
"Issue Date" means the date of original issuance of the
Original Securities.
"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
30% 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).
"Merger Agreement" means the Second Amended and Restated
Plan of Merger dated as of November 14, 1997 by and between FSI Merger
Corp. and 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 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.
"New Credit Facility" means the credit agreement dated as
of January 21, 1998, among the Company, the other borrowers thereto from
time to time, if any, the lenders party thereto from time to time and The
Chase Manhattan Bank, as administrative agent, Xxxxxxx Xxxxx Capital
Corporation, as syndication agent, and DLJ Capital Funding, Inc., as
documentation 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 New 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.
"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
April 17, 2002 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.
"Permitted Holder" means and includes (i) the Principal
or any of its Affiliates, (ii) the Investors or any of their Affiliates,
(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 Notes, (iii) Indebtedness
incurred pursuant to the New Credit Facility in an aggregate principal
amount at any time outstanding not to exceed $469.2 million less (A) the
amount of all mandatory principal payments actually made by the Company in
respect of term loans thereunder (excluding any such payments to the extent
refinanced at the time of payment under the New Credit Facility) and (B) in
the case of a revolving facility, reduced by any required permanent
repayments actually made (which are accompanied by a corresponding
permanent commitment reduction) thereunder (excluding any such repayments
and commitment reductions to the extent refinanced and replaced at the time
under the New Credit Facility), (iv) Indebtedness of Foreign Subsidiaries
incurred solely for working capital purposes of such Foreign Subsidiaries,
(v) other Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the Issue Date reduced by the amount of any scheduled
amortization payments or mandatory prepayments when actually paid or
permanent reductions thereof, (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) intercompany
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 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, or in anticipation or contemplation of, 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 inadvertently drawn against insufficient funds in
the ordinary course of business; provided that such Indebtedness is
extinguished within five Business Days of its incurrence, (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 incurred under this Indenture) of the Company and its
Restricted Subsidiaries and (2) create Indebtedness with a Weighted Average
Life to Maturity at the time such Indebtedness is incurred that is less
than the Weighted Average Life to Maturity at 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 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 $30 million 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 New 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), (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 $20 million at any one time outstanding (which amount should not
be deemed to include any such Indebtedness incurred in whole or in part
under the New Credit Facility to the extent permitted by clause (iii)
above).
"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
$1 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 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) guarantees by the Company or any of its
Restricted Subsidiaries of Indebtedness otherwise permitted to be incurred
by the Company or any of its Restricted Subsidiaries under this Indenture;
(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
$5 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 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 $25 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 subclauses (x) or (y) of clause
(iii) of Section 4.4(a).
"Permitted Liens" means the following types of Liens:
(i) Liens securing the Securities;
(ii) Liens securing Acquired Indebtedness incurred in
reliance on clause (ix) of the definition of Permitted
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 incurred in reliance on clause (xi) of
the definition of Permitted Indebtedness 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 other than that pledged under the Liens
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; and
(v) other Liens securing Senior Subordinated
Indebtedness, provided that the maximum aggregate amount of
outstanding obligations secured thereby shall not at any time
exceed $5 million.
"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.
"Principal" means Xxxxxx X. Xxx Company and its Affiliates.
"Productive Assets" means assets (including Capital Stock
of a Person that directly or indirectly owns assets) of a kind used or
usable in the businesses 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).
"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 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.
"Recapitalization" means the transaction contemplated by
the Merger Agreement, together with the financings therefor.
"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.
"Redemption Event" shall mean (i) an underwritten initial
public offering of the common stock of the Company or (ii) a Change of
Control.
"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 April 24, 2002, among the Company, X.X. Xxxxxx
Securities Inc., Credit Suisse First Boston Corporation and Deutsche Bank
Securities Inc.
"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 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 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.
"Shelf Registration Statement" has the meaning ascribed
thereto in the Registration Rights Agreement.
"Significant Subsidiary" means, as of any date of
determination, for any Person, each Restricted Subsidiary of such Person
which (i) for the most recent fiscal year of such Person accounted for more
than 10% of consolidated revenues or consolidated net income of such Person
or (ii) as at the end of such fiscal year, was the owner of more than 10%
of the consolidated assets of such Person.
"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.
"THL Co." means Xxxxxx X. Xxx Company, a financial
investment firm.
"TIA" means the Trust Indenture Act of 1939 (15
X.X.X.xx.xx. 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.
"Treasury Rate" means 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) which has become publicly available at least
two Business Days prior to the date fixed for prepayment (or, if such
Statistical Release is no longer published, any publicly available source
of similar market data)) most nearly equal to the then remaining term to
May 1, 2007; provided, however, that if the then remaining term to May 1,
2007 is not equal to the constant maturity of a 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 Treasury
securities for which such yields are given, except that if the then
remaining term to May 1, 2007 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.
"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 Subsidiary of the Company that is not a Subsidiary of
the Subsidiary to be so designated; provided that (x) the Company certifies
to the Trustee that such designation complies with Section 4.4 and (y) 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 and (y) immediately before and immediately
after giving effect to such designation, 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.
"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)
"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)
"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 Notes" Preamble
"Initial Securities"...................................... 2.1(a)
"Legal Defeasance"........................................ 8.2(b)
"Legal Holiday"........................................... 13.8
"Net Proceeds"............................................ 4.6(a)
"Net Proceeds Offer"...................................... 4.6(a)
"Net Proceeds Offer Amount"............................... 4.6(a)
"Net Proceeds Offer Trigger Date"......................... 4.6(a)
"Note Offer Amount"....................................... 4.6(a)
"Offer Payment Date"...................................... 4.6(a)
"Other Debt".............................................. 4.6(a)
"pay the Securities"...................................... 10.3
"Paying Agent"............................................ 2.3
"Payment Blockage Period"................................. 10.3
"Purchase Agreement" ..................................... 2.1
"Reference Date".......................................... 4.4(a)
"Registered Securities"................................... 2.1(a)
"Registrar"............................................... 2.3
"Regulation S"............................................ 2.1
"Restricted Payment"...................................... 4.4(a)
"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 SEC.
"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 SEC rule have the meanings assigned to them by such definitions.
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 (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.
(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 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") and 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.
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) 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
(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
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 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 NOTES, 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, (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."
(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 the legend 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 the legend 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 Sections 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.
(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 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.
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 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;
(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, it shall
notify the Trustee in writing of the redemption date and the principal
amount of Securities to be redeemed.
The Company shall give each notice to the Trustee
provided for in this Section at least 60 days before the redemption date
unless the Trustee consents to a shorter period. 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 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. 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.
The 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 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, 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 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.
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, unless (i) in the case of 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 Liens and (ii) in the case of Liens securing Senior
Subordinated Indebtedness, the Securities are equally and ratably secured
by a Lien on such property, assets, proceeds, income or profit.
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 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 3.0
to 1.0.
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 the sum of: (w) 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 subsequent to January 1, 1998 and on or
prior to the date the Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); plus (x) 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
January 21, 1998 and on or prior to the Reference Date 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 net cash proceeds 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 (y)
without duplication of any amounts included in clause (iii)(x) above, 100%
of the aggregate net cash proceeds of any equity contribution received by
the Company subsequent to January 21, 1998 from a holder of the Company's
Capital Stock; plus (z) to the extent that any Investment (other than a
Permitted Investment) that was made after January 21, 1998 is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (A) the cash
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, but only to the extent not
included in the calculation of Consolidated Net Income. Any net cash
proceeds included in the foregoing clauses (iii)(x) or (iii)(y) 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.
(b) Notwithstanding paragraph (a) above, the provisions
set forth in the immediately 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, either (i) solely in exchange for shares of Qualified Capital
Stock of the Company, or (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; (3) payments for the
purpose of and in an amount equal to the amount required to permit the
Company to redeem or repurchase shares of its Capital Stock or options 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 $15
million in the aggregate after January 21, 1998 (which amount shall be
increased by the amount of any cash proceeds to the Company from (x) sales
of its Capital Stock 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) Restricted Payments made pursuant to the
Merger Agreement; (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 $10 million in the
aggregate after January 21, 1998; (9) repurchases of payment-in-kind
preferred stock; provided that (i) such repurchases do not exceed $15
million in the aggregate and (ii) such preferred stock repurchased shall
have been issued on or prior to the Issue Date; and (10) the Company or any
Restricted Subsidiary from purchasing all (but not less than all),
excluding directors' qualifying shares, of the Capital Stock or other
ownership interests in a Subsidiary of the Company which Capital Stock or
other ownership interests were not theretofore owned by the Company or a
Subsidiary of the Company, such that after giving effect to such purchase
such Subsidiary becomes a Restricted Subsidiary of the Company. In
determining the aggregate amount of Restricted Payments made subsequent to
the Issue Date in accordance with Section 4.4(a)(iii), (a) 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 Section 4.4(b) 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) amounts expended pursuant to clauses (2), (4),
(5), (6), (7) and (10) 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 or any other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason
of: (1) applicable law; (2) this Indenture; (3) non-assignment provisions
of any contract or any lease entered into in the ordinary course of
business; (4) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to the Company or any
Restricted Subsidiary of the Company, or the properties or assets of any
such Person, other than the Person or the properties or assets of the
Person so acquired; provided, however, that such Acquired Indebtedness was
not incurred in connection with, or in anticipation or contemplation of an
acquisition by the Company or the Restricted Subsidiary; (5) agreements
existing on the Issue Date (including, without limitation, the New Credit
Facility and the Merger Agreement); (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; or (10) an agreement effecting a
refinancing, replacement or substitution of Indebtedness issued, assumed or
incurred pursuant to an agreement referred to in clause (2), (4) or (5)
above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such refinancing, replacement or
substitution agreement are no less favorable to the Company or the Holders
in any material respect as determined by the Board of Directors of the
Company than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (4) or (5).
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), (ii) 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 (x) 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 and (y) any notes or other obligations received by
the Company or such Restricted Subsidiary from such transferee that are
promptly, but in no event more than 60 days after receipt, converted by the
Company or such Restricted Subsidiary into cash or Cash Equivalents (to the
extent of the cash or Cash Equivalents received) 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 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(a). 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 $10 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 $10 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 the aggregate of all such deferred Net
Proceeds Offer Amounts is equal to $10 million or more shall be deemed to
be a "Net Proceeds Offer Trigger Date").
Notwithstanding the immediately 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); 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; provided, however, that for a transaction or series of related
transactions with an aggregate value of $5 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 $15 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 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; (xiv) the payment, on a quarterly basis, of management fees to
THL Co. and/or any Affiliate of THL Co. in accordance with the management
arrangements entered into in January 1998 between THL Co. and/or any
Affiliate of THL Co. and the Company in an aggregate amount (for all such
Persons taken together) not to exceed $250,000 in any fiscal quarter of the
Company; (xv) reimbursement of THL Co. and/or any Affiliate of THL Co. for
their reasonable out-of-pocket expenses incurred by them in connection with
performing management services for the Company and its Subsidiaries; and
(xvi) the payment of one time fees to THL Co. and/or Affiliates of THL Co.
in connection with each acquisition of a company or a line of business by
the Company or its Subsidiaries, such fees to be payable at the time of
each such acquisition and not to exceed 1% of the aggregate consideration
paid by the Company and its Subsidiaries for any such acquisition.
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. 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, the Company covenants to (i) 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 (ii) obtain the requisite consents under the New
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) 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, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state, among other things, the purchase
date, which must be no earlier than 30 days nor later than 45 days from the
date such notice is mailed, other than as may be required by law (the
"Change Of Control Payment Date"). Holders electing to have a Security
purchased pursuant to a Change of Control Offer will be 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.
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 other 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 incurred pursuant to
clause (iii) of the definition of "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 any
Subsidiary Guarantor is released from its guarantee with respect to
Indebtedness outstanding under the New Credit Facility and all other
Indebtedness of the Company, 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.
SECTION 4.12. Conduct of Business. The Company and its
Restricted Subsidiaries will not engage in any businesses which are not the
same, similar, related or ancillary 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
Board of Directors 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.
(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 Board of Directors 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 Board of Directors 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 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"), 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;
(iii) immediately before and 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 any registration rights agreement in
respect thereof, 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.
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 $15 million or
more at any time;
(6) one or more judgments in an aggregate amount in
excess of $15 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:
(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;
(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;
(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.
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
ss. 316(a)(1)(B) of the TIA and such ss. 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 ss. 316(a)(1)(A)
of the TIA, and such ss. 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.
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.
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 Sections 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 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 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.
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 SEC 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.
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.
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 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;
(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 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
New Credit Facility (if then in effect) or any other 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 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 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;
(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 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.
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;
(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 SEC 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; or
(10) to secure the Securities pursuant to the
requirements of Section 4.2 or otherwise;
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);
(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 described 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 on 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 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
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. 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.
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.
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) 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.
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.
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 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 limited 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: /s/ Xxxx X. XxXxxxx
------------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President, General
Counsel and Secretary
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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 GUARANTOR 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, (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.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
No. Principal Amount $
CUSIP NO.
8 1/8% Senior Subordinated Note due 2012
Xxxxxx Scientific International Inc., a Delaware
corporation, promises to pay to Cede & Co., or registered assigns, the
principal sum of on May 1, 2012.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Additional provisions of this Security are set forth on
the other side of this Security.
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
(Reverse of Security)
8 1/8% Senior Subordinated Note due 2012
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 May 1 and
November 1 of each year, commencing November 1, 2002. 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
April 15 and October 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.
4. Indenture
The Company issued the Securities under an Indenture
dated as of April 24, 2002 (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. xx.xx. 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
Except as set forth in this paragraph 5, the Securities
will not be redeemable at the option of the Company prior to May 1, 2007.
On and after such date, the Securities will be redeemable, at the Company's
option, in whole or in part, 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
May 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
---- ----------------
2007........................................... 104.063%
2008........................................... 102.708%
2009........................................... 101.354%
2010 and thereafter............................ 100.000%
Notwithstanding the foregoing, at any time, or from time
to time, on or prior to May 1, 2005, 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 108.125% 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 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 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 (b) 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
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 principal 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 comply with Article V
of the Indenture, or to make certain changes in Article X of the Indenture
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the
Securities or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company, or to comply with any
request of the SEC in connection with qualifying the Indenture under the
Act, 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
$15.0 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 $15.0 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.
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 the Initial Purchasers, 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 this Security for
another series of 8 1/8% Senior Subordinated Notes due 2012 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.
-------------------------
(a) To be included in certificates evidencing the Initial Notes.
Additional Securities issued as Transfer Restricted Securities may
have a comparable provision inserted here.
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:
1 |_| 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
2 |_| transferred to the Company; or
3 |_| transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
4 |_| transferred pursuant to an effective registration statement
under the Securities Act; or
5 |_| transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
6 |_| 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
7 |_| 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
(Signature must be guaranteed
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Securities
Exchange this Global Security this Global Security decrease or increase Custodian
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)
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.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
No. __ Principal Amount
CUSIP NO.
8 1/8% Senior Subordinated Note due 2012
Xxxxxx Scientific International Inc., a Delaware
corporation, promises to pay to Cede & Co., or registered assigns, the
principal sum of Dollars on May 1, 2002.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Additional provisions of this Security are set forth on
the other side of this Security.
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
(Reverse of Security)
8 1/8% Senior Subordinated Note due 2012
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 May 1 and
November 1 of each year, commencing November 1, 2002. 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
April 15 and October 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.
4. Indenture
The Company issued the Securities under an Indenture
dated as of April 24, 2002 (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. xx.xx. 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
Except as set forth in this paragraph 5, the Securities
will not be redeemable at the option of the Company prior to May 1, 2007.
On and after such date, the Securities will be redeemable, at the Company's
option, in whole or in part, 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
May 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
---- ----------------
2007........................................... 104.063%
2008........................................... 102.708%
2009........................................... 101.354%
2010 and thereafter............................ 100.000%
Notwithstanding the foregoing, at any time, or from time
to time, on or prior to May 1, 2005, 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 108.125% 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 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 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 (b) 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
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 principal 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 comply with Article V
of the Indenture, or to make certain changes in Article X of the Indenture
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the
Securities or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company, or to comply with any
request of the SEC in connection with qualifying the Indenture under the
Act, 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
$15.0 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 $15.0 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.
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.
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.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized officer of
Date of Principal Amount of Principal Amount of following such Trustee or Securities
Exchange this Global Security this Global Security decrease or increase Custodian
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)
