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GLOBAL HEALTH SCIENCES, INC., as Issuer,
The SUBSIDIARY GUARANTORS named herein
and
CHASE MANHATTAN BANK and TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
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INDENTURE
Dated as of April 23, 1998
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up to $325,000,000
11% Senior Notes due 2008
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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)................................................ 7.08; 7.10; 11.02
(b)(1)............................................. 7.10
(b)(9)............................................. 7.10
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 10.03
(c)................................................ 10.03
313(a)................................................ 7.06
(b)(1)............................................. 7.06
(b)(2)............................................. 7.06
(c)................................................ 11.02
(d)................................................ 7.06
314(a)................................................ 4.02; 4.04; 11.02
(b)................................................ N.A.
(c)(1)............................................. 11.04; 11.05
(c)(2)............................................. 11.04; 11.05
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 10.05
(f)................................................ N.A.
315(a)................................................ 7.01; 7.02
(b)................................................ 7.05; 10.02
(c)................................................ 7.01
(d)................................................ 6.05; 7.01; 7.02
(e)................................................ 6.11
316(a) (last sentence)................................ 11.06
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. 8.02
(b)................................................ 6.07
(c)................................................ 8.04
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 7.12
318(a)................................................ 11.01
N.A. means Not Applicable
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.............................................1
Section 1.02. Other Definitions......................................21
Section 1.03. Incorporation by Reference of Trust
Indenture Act........................................22
Section 1.04. Rules of Construction..................................22
ARTICLE 2 THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture.............23
Section 2.02. Execution and Authentication...........................24
Section 2.03. Registrar and Paying Agent.............................25
Section 2.04. Paying Agent to Hold Money in Trust....................25
Section 2.05. Noteholder Lists.......................................26
Section 2.06. Transfer and Exchange..................................26
Section 2.07. Replacement Notes......................................27
Section 2.08. Outstanding Notes......................................28
Section 2.09. Temporary Notes........................................28
Section 2.10. Cancellation...........................................28
Section 2.11. Defaulted Interest.....................................29
Section 2.12. Deposit of Moneys......................................29
Section 2.13. CUSIP Number...........................................29
Section 2.14. Book-Entry Provisions for Global Notes.................30
Section 2.15. Special Transfer Provisions............................31
ARTICLE 3 REDEMPTION
Section 3.01. Notices to Trustee.....................................34
Section 3.02. Selection by Trustee of Notes to Be
Redeemed.............................................34
Section 3.03. Notice of Redemption...................................34
Section 3.04. Effect of Notice of Redemption.........................35
Section 3.05. Deposit of Redemption Price............................36
Section 3.06. Notes Redeemed in Part.................................36
Section 3.07. Redemption.............................................36
ARTICLE 4 COVENANTS
Section 4.01. Payment of Notes.......................................37
Section 4.02. Provision of Financial Statements and Other
Information..........................................38
Section 4.03. Waiver of Stay, Extension or Usury Laws................39
Section 4.04. Compliance Certificate.................................39
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Section 4.05. Taxes..................................................40
Section 4.06. Limitation on Additional Indebtedness..................40
Section 4.07. Limitation on Restricted Payments......................42
Section 4.08. Disposition of Proceeds of Asset Sales.................44
Section 4.09. Limitation on Transactions with Affiliates.............47
Section 4.10. Limitations on Liens...................................49
Section 4.11. Limitations on Investments, Loans and
Advances.............................................49
Section 4.12. Limitation on Sale-Leaseback Transactions..............50
Section 4.13. Corporate Existence....................................50
Section 4.14. Change of Control......................................50
Section 4.15. Maintenance of Office or Agency........................53
Section 4.16. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries..................53
Section 4.17. Ownership of Capital Stock of Wholly-Owned
Subsidiaries.........................................54
Section 4.18. Limitation on Creation of Subsidiaries.................55
Section 4.19. Further Assurances.....................................55
ARTICLE 5 SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and
Sale of Assets.......................................55
Section 5.02. Successor Person Substituted...........................56
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. Events of Default......................................57
Section 6.02. Acceleration...........................................59
Section 6.03. Other Remedies.........................................60
Section 6.04. Waiver of Past Defaults and Events of
Default. ............................................60
Section 6.05. Control by Majority....................................60
Section 6.06. Limitation on Suits....................................61
Section 6.07. Rights of Holders to Receive Payment...................61
Section 6.08. Collection Suit by Trustee.............................62
Section 6.09. Trustee May File Proofs of Claim.......................62
Section 6.10. Priorities.............................................63
Section 6.11. Undertaking for Costs..................................63
ARTICLE 7 TRUSTEE
Section 7.01. Duties of Trustee......................................63
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Section 7.02. Rights of Trustee......................................65
Section 7.03. Individual Rights of Trustee...........................66
Section 7.04. Trustee's Disclaimer...................................66
Section 7.05. Notice of Defaults.....................................66
Section 7.06. Reports by Trustee to Holders..........................67
Section 7.07. Compensation and Indemnity.............................67
Section 7.08. Replacement of Trustee.................................68
Section 7.09. Successor Trustee by Consolidation, Merger
or Conversion........................................70
Section 7.10. Eligibility; Disqualification..........................70
Section 7.11. Preferential Collection of Claims Against
Company..............................................70
Section 7.12. Paying Agents..........................................70
ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.............................71
Section 8.02. With Consent of Holders................................72
Section 8.03. Compliance with Trust Indenture Act....................74
Section 8.04. Revocation and Effect of Consents......................74
Section 8.05. Notation on or Exchange of Notes.......................74
Section 8.06. Trustee to Sign Amendments, etc........................75
ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture................75
Section 9.02. Legal Defeasance.......................................76
Section 9.03. Covenant Defeasance....................................77
Section 9.04. Conditions to Defeasance or Covenant
Defeasance...........................................77
Section 9.05. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.............................79
Section 9.06. Reinstatement..........................................80
Section 9.07. Moneys Held by Paying Agent............................80
Section 9.08. Moneys Held by Trustee.................................81
Section 9.09. Qualifying Trustee.....................................81
ARTICLE 10 SUBORDINATED GUARANTEES
SECTION 10.01. Unconditional Guarantees of the Subsidiary
Guarantors; Subordination; etc.......................81
Section 10.02. Costs and Expenses.....................................89
Section 10.03. Limitation on Liability................................89
Section 10.04. Successors and Assigns.................................89
Section 10.05. No Waiver..............................................89
Section 10.06. Modification...........................................90
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Section 10.07. Release of Subsidiary Guarantor........................90
Section 10.08. Execution of Supplemental Indenture for
Future Subsidiary Guarantors.........................90
Section 10.09. Execution and Delivery of Guarantees...................91
ARTICLE 11 MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls...........................92
Section 11.02. Notices................................................92
Section 11.03. Communications by Holders with Other
Holders..............................................93
Section 11.04. Certificate and Opinion as to Conditions
Precedent............................................93
Section 11.05. Statements Required in Certificate and
Opinion..............................................94
Section 11.06. When Treasury Notes Disregarded........................94
Section 11.07. Rules by Trustee (and Agents)..........................95
Section 11.08. Business Days; Legal Holidays..........................95
Section 11.09. Governing Law..........................................95
Section 11.10. No Adverse Interpretation of Other
Agreements...........................................95
Section 11.11. No Recourse Against Others.............................95
Section 11.12. Successors.............................................96
Section 11.13. Multiple Counterparts..................................96
Section 11.14. Table of Contents, Headings, etc.......................96
Section 11.15. Separability...........................................96
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EXHIBITS
Exhibit A. Form of Note...............................................A-1
Exhibit B. Form of Legend for Global Notes............................B-1
Exhibit C. Form of Certificate to Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors.............C-1
Exhibit D. Form of Certificate to Be Delivered in Connection
with Transfers Pursuant to Regulation S....................D-1
Exhibit E. Form of Subordinated Guarantee.............................E-1
Exhibit F. Form of Supplemental Indenture.............................F-1
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INDENTURE, dated as of April 23, 1998, between GLOBAL HEALTH
SCIENCES, INC., a California corporation (the "Company"), each of the Company's
subsidiaries (each a "Subsidiary Guarantor," and collectively, the "Subsidiary
Guarantors"), and CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 11%
Senior Notes due 2008, to be issued initially in the principal amount of
$225,000,000 and thereafter in an additional amount, if any, up to $100,000,000
subject to the terms and conditions contained herein; and 11% Senior Notes due
2008 to be issued in exchange for the 11% Senior Notes due 2008 pursuant to a
Registration Rights Agreement (as defined) and, to provide therefor, the Company
has duly authorized the execution and delivery of this Indenture. All things
necessary to make the Notes (as defined), when duly issued and executed by the
Company and authenticated and delivered hereunder, the valid and binding
obligations of the Company and to make this Indenture a valid and binding
agreement of the Company, have been done. All things necessary to make the
Guarantees (as defined) of the Subsidiary Guarantors named herein the valid and
binding obligations of such Subsidiary Guarantors and to make this Indenture a
valid and binding agreement thereof, have been done.
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 11% Senior
Notes due 2008 (the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Subsidiary of the
Company or such acquisition, merger or consolidation.
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"Acquisition Facility" means (i) the Acquisition Facility, dated as
of April 23, 1998, between Global Sub, the Company and the other Subsidiary
Guarantors, the lenders party thereto in their capacities as lenders thereunder,
Citibank, N.A., as issuing bank, Bank of America NT&SA, as documentation agent
and Citicorp USA, Inc., as administrative agent, together with the documents
related thereto or executed in connection therewith (including, without
limitation, any guarantee agreements, security documents and Interest Rate
Protection Obligations), (ii) any one or more additional agreements among the
Company and/or any of its Subsidiaries and one or more financial institutions
providing for the making of loans on a term or revolving basis and/or the
issuance of letters of credit to the extent incurred for the purpose of
financing acquisitions, and (iii) any agreement extending the maturity of,
refinancing, renewing, replacing or otherwise restructuring (including
increasing the amount of available financings thereunder (provided that such
increase in borrowings is permitted by Section 4.06(c), (d), (e), (g), and (j))
all or any portion of the Indebtedness or commitments or letters of credit under
any such agreement or any successor or replacement agreement and whether by the
same or any other agent, lender or group of lenders, in each case as such
agreements under the foregoing clauses (i), (ii) and (iii) may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time.
"Additional Amounts" shall have the meaning set forth in the
Registration Rights Agreement.
"Adjusted Net Assets" of any Person at any date shall mean the
lesser of (x) the amount by which the fair value of the property of such Person
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities), but excluding liabilities under the Guarantee of such Person at
such date and (y) the amount by which the present fair salable value of the
assets of such Person at such date exceeds the amount that will be required to
pay the probable liability of such Person on its debts (after giving effect to
all other fixed and contingent liabilities and after giving effect to any
collection from any Subsidiary of such Person in respect of the obligations of
such Person under the Guarantee of such Person), excluding liabilities in
respect of the Guarantee of such Person, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, controls, is controlled
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by or is under direct or indirect common control with, such specified Person.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "affiliated," "controlling" and
"controlled" have meanings correlative to the foregoing.
"Affiliate Transaction" has the meaning ascribed to such term under
Section 4.09.
"Agent" means any Registrar, Paying Agent, co-Registrar or agent for
service of notices and demands.
"Asset Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, by the Company or any of its Wholly-Owned
Subsidiaries in any other Person, in either case pursuant to which such Person
shall become a Wholly-Owned Subsidiary of the Company or any of its Wholly-Owned
Subsidiaries or shall be merged with or into the Company or any of its
Wholly-Owned Subsidiaries or (ii) any acquisition by the Company or any of its
Wholly-Owned Subsidiaries of the assets of any Person which constitute all of an
operating unit or business of such Person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (including by means of sale-leaseback), assignment
or other transfer or disposition to any Person other than the Company or any
Wholly-Owned Subsidiary, in one transaction or a series of related transactions,
of (i) any Capital Stock of any Subsidiary of the Company (including by way of
issuance by such Subsidiary) or (ii) any other property or asset of the Company
or any Subsidiary of the Company other than inventory in the ordinary course, in
each case, other than such transactions or series of related transactions which
do not exceed $500,000. For the purposes of this definition, the term "Asset
Sale" will not include (a) any disposition of properties or assets of the
Company or any Subsidiary of the Company that is governed under and complies
with the requirements set forth in Sections 5.01, 4.12, or 4.07; or (b)
dispositions of obsolete or worn out equipment in the ordinary course of
business and consistent with past practice.
"Asset Sale Offer" has the meaning ascribed to such term under
Section 4.08.
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"Attributable Debt" means, in respect of a Sale-Leaseback
Transaction, as at the time of determination, the greater of (i) the Fair Market
Value of the property subject to such arrangement or (ii) the present value
(discounted at the interest rate borne by the Notes, compounded semi-annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such arrangement (including any period for which
such lease has been extended).
"Authenticating Agent" has the meaning provided in Section 2.02.
"Board of Directors" means the board of directors of any Person or
any committee authorized to act therefor.
"Board Resolution" means with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted, in good faith, by the Board of Directors of such
Person and to be in full force and effect on the date of such certification.
"Business Day" means a day other than a Saturday, a Sunday or day
which banking institutions in the City of New York are not required to be open.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of any Person, including Common Stock
or Preferred Stock and including any rights, options or warrants with respect
thereto.
"Capitalized Lease Obligation" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
any property (whether real, personal or mixed) that is required to be classified
and accounted as a capital lease obligation under GAAP, and, for the purpose of
this Indenture, the amount of such obligation at any date will be the
capitalized amount thereof at such date, determined in accordance with GAAP.
"Cash Equivalents" means, at any time (i) any evidence of
Indebtedness with a maturity of 365 calendar days or less issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances or money market deposits with a maturity of 365 calendar days or
less of any financial institution that is a member of the United States Federal
Reserve Sys-
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tem having combined capital and surplus and undivided profits of not less than
$500,000,000; (iii) commercial paper with a maturity of 365 calendar days or
less issued by a corporation (except an Affiliate of the Company) organized
under the laws of any state of the United States or the District of Columbia and
rated at least A-1 by S&P or at least P-1 by Xxxxx'x; (iv) repurchase agreements
and reverse repurchase agreements relating to marketable direct obligations
issued 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 365 calendar days from the date of
acquisition; provided that, in the case of obligations issued or guaranteed by
the United States of America, the terms of such agreements comply with the
guidelines set forth in the United States Federal Financial Agreements of
Depository Institutions with Securities and Others, as adopted by the United
States Comptroller of the Currency; and (v) investments in money market funds
which invest substantially all their assets in securities of the types described
in (i)-(iv) above.
"Change of Control" means (a) all or substantially all of the assets
of the Company are sold, leased, exchanged or otherwise transferred to any
person or entity or group of persons or entities acting in concert as a
partnership or other group (a "Group of Persons") other than a Permitted Holder
(or other than to a Wholly-Owned Subsidiary of the Company) (b) the Company is
merged or consolidated with or into another corporation with the effect that the
Permitted Holders hold less than 50% of the combined voting power of the then
outstanding securities of the surviving corporation of such merger or the
corporation resulting from such consolidation ordinarily (and apart from rights
arising under special circumstances) having the right to vote in the election of
directors, (c) a majority of the board of directors of the Company shall be
replaced, over a two-year period, from the directors who constituted the board
of directors at the beginning of such period, and such replacement shall not
have been approved by the board of directors as constituted at the beginning of
such period, (d) a Person or Group of Persons (other than the Permitted Holders)
shall, as a result of a tender or exchange offer, open market purchases,
privately negotiated purchases or otherwise, beneficially own (within the
meaning of Rule 13d-3 under the Exchange Act) Common Stock of the Company or
securities of the Company representing 50% or more of the Common Stock or voting
power of the then outstanding securities of the Company, or (e) the Permitted
Holders cease to own at least 50% of the Voting Capital Stock of the Company.
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"Change of Control Date" has the meaning ascribed to such term under
Section 4.14.
"Change of Control Offer" has the meaning ascribed to such term
under Section 4.14.
"Change of Control Payment Date" has the meaning ascribed to such
term under Section 4.14.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means, with respect to any Person, any and all
shares, interests (including partnership interests) or other participations in,
and other equivalents (however designated and whether voting or nonvoting) of
such Person's common stock or ordinary shares or interests, whether or not
outstanding at the Issue Date, and includes, without limitation, all series and
classes of such common stock or ordinary shares or interests.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor.
"Company Request" means any written request signed in the name of
the Company by an Officer of the Company and attested to by the Secretary or any
Assistant Secretary of the Company.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense
(including amortization or write-off of deferred financing costs of such Person
and its consolidated Subsidiaries during such period and any premium or penalty
paid in connection with redeeming or retiring Indebtedness or any series of
Disqualified Capital Stock or Preferred Stock of the Company and its
consolidated Subsidiaries prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness, Disqualified Capital Stock or Preferred
Stock, as the case may be) and (ii) the product of (x) the amount of all
dividend payments on any series of Disqualified Capital Stock of such Person and
any series of Disqualified Capital Stock or Preferred Stock of its Subsidiaries
(other than dividends paid in Capital Stock which is not Disqualified Capital
Stock) paid, accrued or scheduled to be paid or accrued during such period times
(y) a fraction, the numerator of which
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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 aggregate of the interest expense (without deduction for
interest income) of such Person and its Subsidiaries for such period, on a
consolidated basis, as determined in accordance with GAAP, and including (a) all
amortization of original issue discount and deferred financing costs; (b) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Subsidiaries during such
period; (c) net cash costs under all Interest Rate Protection Obligations
(including amortization of fees); (d) all capitalized interest; and (e) the
interest portion of any deferred payment obligations for such period.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP
consistently applied; provided, that (a) the Net Income of any other Person in
which the Person in question or one of its Subsidiaries has a joint interest
with a third party (which interest does not cause the Net Income of such other
Person to be consolidated into the Net Income of the Person in question in
accordance with GAAP) shall be included only to the extent of the amount of
dividends or distributions paid to the Person in question or the Subsidiary, (b)
the Net Income of any Subsidiary of such Person that is subject to any legal,
consensual or other restriction or limitation on the payment of dividends or the
making of other distributions shall be excluded to the extent of such
restriction or limitation, (c)(i) the Net Income (or loss) of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition and (ii) any net gain (but not loss) resulting from an Asset
Sale by such Person or any of its Subsidiaries other than in the ordinary course
of business shall, in each case, be excluded, and (d) extraordinary gains and
losses (and any related tax effects) and any one-time increase or decrease to
Net Income which is required to be recorded because of the adoption of new
accounting practices or standards required by GAAP, shall in each case be
excluded.
"Consolidated Net Worth" means, with respect to any Person at any
date of determination, the consolidated equity represented by such Person's
Capital Stock (other than Dis-
-8-
qualified Capital Stock) at such date, as determined on a consolidated basis in
accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000.
"covenant defeasance" has the meaning ascribed to such term under
Section 9.03.
"Currency Protection Obligations" means obligations under any
foreign exchange contract, currency swap agreement, or other similar agreement
or arrangement designed to protect the Company and its Subsidiaries against
fluctuations in currency values and entered into for hedging and not speculative
purposes.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Default Amount" has the meaning ascribed to such term under Section
6.02.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Disqualified Capital Stock" means, with respect to any Person, 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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is exchangeable for Indebtedness, or is redeemable
or required to be purchased at the option of the holder thereof, in whole or in
part, on or prior to the maturity date of the Notes.
"EBITDA" means, for a period ending at the close of any fiscal
quarter, the sum of: (a) Consolidated Net Income for such period, plus (b) to
the extent deducted in determining
-9-
Consolidated Net Income, the sum of all expenses of the Company and its
Subsidiaries, on a consolidated basis, in accordance with GAAP for such period
in respect of (i) depreciation, (ii) amortization excluding amortization of
capitalized debt issuance costs, (iii) Consolidated Interest Expense, (iv)
consolidated income taxes, and (v) any other non-cash charges to the extent
deducted from or reflected in Consolidated Net Income except for any non-cash
charges that represent accruals of, or reserves for, cash disbursements to be
made in any future accounting period. Notwithstanding the foregoing, the
provision for taxes based on the income and profits of, and the depreciation,
amortization and other non-cash charges of a Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Subsidiary was included in calculating
the Consolidated Net Income and only if a corresponding amount could, at the
date of determination, be paid as a dividend by such Subsidiary to the Company.
"EBITDA Coverage Ratio" means the ratio of (a) EBITDA for the four
fiscal quarters immediately preceding the determination date to (b) Consolidated
Fixed Charges calculated on a pro forma basis for such four fiscal quarters. For
purposes of this definition, if the date of the transaction giving rise to the
need to calculate the EBITDA Coverage Ratio (the "Transaction Date") occurs
prior to the date on which the Company's consolidated financial statements for
the four full fiscal quarters subsequent to the Issue Date are first available,
EBITDA and Consolidated Fixed Charges shall be calculated, in the case of the
Company, after giving effect on a pro forma basis as if the Notes outstanding on
the date of the Transaction Date were issued on the first day of such four full
fiscal quarter period and the assets and liabilities of the Company as of the
Transaction Date had been contributed to or assumed by the Company on such first
day. In addition to and without limitation of the foregoing, for purposes of
this definition, 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 or repayment of any Indebtedness of such Person or any of its
Subsidiaries (and the application of the proceeds thereof) at any time during
the period (the "Reference Period") (A) commencing on the first day of the four
full fiscal quarter period for which financial statements are available that
precedes the Transaction Date and (B) ending on and including the Transaction
Date, including, without limitation, the incurrence or repayment of the
Indebtedness (and the application of the proceeds thereof) giving rise to the
need to make such calculation, as if such incurrence or repayment oc-
-10-
curred on the first day of the Reference Period; provided, that if such Person
or any of its Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the above clause shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or Subsidiary had directly incurred
such guaranteed Indebtedness and (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 the Company or any of its Wholly-Owned
Subsidiaries (including any Person who becomes a Wholly-Owned Subsidiary as a
result of the Asset Acquisition) incurring Acquired Indebtedness) occurring
during the Reference Period (it being expressly understood that such calculation
shall also give effect on a pro forma basis to any increase or decrease in
Consolidated Net Income (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange Act)
attributable to such Asset Sale or Asset Acquisition, as if such Asset Sale or
Asset Acquisition occurred on the first day of the Reference Period) and any
retirement of Indebtedness in connection with such Asset Sale or Asset
Acquisition, as if such Asset Sale or Asset Acquisition and/or retirement
occurred on the first day of the Reference Period. Furthermore, in calculating
the denominator (but not the numerator) of this "EBITDA Coverage Ratio," (1)
interest on Indebtedness determined on a fluctuating basis as of the Transaction
Date and which will continue to be so determined thereafter shall be deemed to
accrue 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 be in effect during the
Reference 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 Rate Protection Obligations, shall be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements.
"Event of Default" has the meaning ascribed to such term under
Section 6.01.
"Excess Proceeds" has the meaning ascribed to such term under
Section 4.08.
-11-
"Excess Proceeds Payment Date" has the meaning ascribed to such term
under Section 4.08.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means senior debt securities of the Company with
substantially identical terms as the Notes issued on the Issue Date, to be
exchanged for such Notes in a Registered Exchange (as defined in Section 2.02)
or a Private Exchange (as defined in the Registration Rights Agreement).
"Fair Market Value" or "fair value" means, with respect to any asset
or property, the price which could be negotiated in an arm's-length transaction,
for cash, between a willing seller and a willing 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 in good
faith and shall be evidenced by a Board Resolution of the Company.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States of America.
"Global Sub" means Global Health Sub, Inc., a California
corporation.
"Group of Persons" has the meaning ascribed to such term in the
definition of "Change of Control" set forth above.
"Guarantees" has the meaning ascribed to such term under Article 10.
"Guarantor Senior Debt" means with respect to any Subsidiary
Guarantor, the principal of, premium, if any, and interest (including any
interest accruing subsequent to the filing of a petition of bankruptcy at the
rate provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all amounts owing in
respect of, all monetary obligations of every nature under the Acquisition
Facility and of any guarantees by the Subsidiary Guarantors of Indebtedness
under the Acquisition Facility, including, without limitation, obligations to
pay principal, premium and interest, reimbursement obligations under letters of
credit, fees, expenses and indemnities, unless the Acquisition Facility
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantee of such Subsidiary Guarantor.
-12-
"Holders" or "Noteholders" means the Persons in whose names the
Notes are registered in the register for the Notes maintained under Section
2.03.
"incur" has the meaning ascribed to such term under Section 4.06.
"Indebtedness" means, with respect to any Person, without
duplication, (i) any liability, contingent or otherwise, of such Person (A) for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), or (B) evidenced by a note,
debenture or similar instrument or letters of credit (including a purchase money
obligation or other obligation relating to the deferred purchase price of
property and any Capitalized Lease Obligations); (ii) any liability of others of
the kind described in the preceding clause (i) which such Person has guaranteed
or which is otherwise its legal liability; (iii) any obligation secured by a
Lien to which the property or assets of such Person are subject, whether or not
the obligations secured thereby shall have been assumed by or shall otherwise be
such Person's legal liability; (iv) Capitalized Lease Obligations, Currency
Protection Obligations and Interest Rate Protection Obligations; (v) the
Attributable Debt of any Sale-Leaseback Transaction; (vi) Disqualified Capital
Stock and (vii) any and all deferrals, renewals, extensions and refundings of,
or amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses (i), (ii), (iii), (iv), (v) or (vi).
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent" when used with respect to any specified Person means
such a Person who (a) is in fact independent, (b) does not have any direct
financial interest or any material indirect financial interest in the Company or
any Affiliate of the Company and (c) is not an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions
for the Company or any of its Affiliates.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking or consulting firm of national recognition within the United
States that is, in the reasonable judgment of the Board of Directors of the
Company, qualified to perform the tasks for which such firm has been engaged and
Independent with respect to the Company and its Affiliates.
-13-
"Initial Purchaser" means, collectively, Citicorp Securities, Inc.,
Citibank Canada Securities Limited and Citibank International plc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as the term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Rate Protection 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 Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include without limitation, interest rate swaps, caps,
floors, collars and similar agreements and, in each case, entered into for
hedging and not for speculative purposes.
"Investment" has the meaning ascribed to such term under Section
4.11.
"Issue Date" means April 23, 1998.
"Lien" means, with respect to any Person, any mortgage, deed of
trust, pledge, lien, lease, encumbrance, easement, restriction, covenant,
right-of-way, charge or adverse claim affecting title or resulting in an
encumbrance against real or personal (tangible or intangible) property or any
interest therein of such Person, or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof, any option, right of first refusal or other similar
agreement to sell, in each case securing obligations of such Person, and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statute or statutes) of any jurisdiction other
than to reflect ownership by a third party of property leased to the referent
Person or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Maturity Date" means May 1, 2008.
-14-
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, the
proceeds thereof 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 (except to the extent that such obligations with respect to
Indebtedness are financed or sold with recourse to the Company or any of its
Subsidiaries) net of (i) brokerage commissions and other reasonable fees and
expenses (including reasonable fees and expenses of counsel and investment
bankers) incurred in connection with such Asset Sale; (ii) provisions for all
taxes payable as a result of such Asset Sale; (iii) payments made to retire
Indebtedness secured by the assets subject to such Asset Sale to the extent
required pursuant to the terms of such Indebtedness; and (iv) appropriate
amounts to be provided by the Company or any of its Subsidiaries, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any of its
Subsidiaries, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"Net Income" means, with respect to any Person for any period, the
net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by
the Company, the aggregate net proceeds received by the Company, after payment
of expenses, commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in property (valued at the Fair Market Value
thereof, as determined in good faith by the Board of Directors of the Company,
at the time of receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind of the Company for
or into shares of Capital Stock of the Company which is not Disqualified Capital
Stock, the net book value of such outstanding securities on the date of such
exchange, exercise, conversion or surrender (plus any additional amount required
to be paid by the Company upon such exchange, exercise, conversion or surrender,
less any and all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by the Company in connection therewith).
-15-
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the 11% Senior Notes due 2008 of the Company,
including the Exchange Notes and Private Exchange Notes, if any, treated as a
single class of securities under this Indenture.
"Offering Memorandum" means the Confidential Offering Memorandum
dated April 17, 1998 pursuant to which the Notes were offered.
"Officer" means, with respect to any Person, the Chairman of the
Board of Directors, the Chief Executive Officer, the Chief Financial Officer,
the Treasurer or the Controller of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either the Secretary or
an Assistant Secretary of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who
and which is reasonably acceptable to the Trustee complying with the
requirements of the Indenture. Such legal counsel shall be outside counsel and
not an employee of or in-house counsel to the Company.
"Permitted Holder" means Xxxxxxx X. Xxxxxxx, any spouse of Xx.
Xxxxxxx, any lineal descendants of Xx. Xxxxxxx, any trust or estate the sole
beneficiaries of which are Xx. Xxxxxxx, any spouses of Xx. Xxxxxxx or any lineal
descendants of Xx. Xxxxxxx, or any entity owned or controlled by any of the
foregoing.
"Permitted Liens" means (i) Liens in favor of the Company or a
Subsidiary of the Company; (ii) Liens existing on the Issue Date, (iii) Liens
securing Indebtedness and any other obligations related thereto (including
accrued interest, fees and reimbursements and indemnities thereon and other
obligations related thereto) incurred under the Acquisition Facility;
provided, that the incurrence of such Indebtedness is otherwise permitted
under the Indenture; (iv) Liens on assets of a Person when it becomes a
Subsidiary and Liens securing Acquired Indebtedness incurred in accordance
with Section 4.06; provided, that in each case (A) such Liens secured such
assets or Acquired Indebtedness at the time of and prior to such Person
becoming a Subsidiary or the incurrence of such Acquired Indebt-
-16-
edness by the Company or a Subsidiary of the Company and were not granted in
connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company or a Subsidiary of the Company and (B) such Liens
do not extend to or cover any property or assets of the Company or of any of
its 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 Subsidiary of the Company and are no more favorable to
the lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Subsidiary of
the Company; (v) leases and subleases of real property which do not interfere
with the ordinary conduct of the business of the Company or any of its
Subsidiaries, and which are made on customary and usual terms applicable to
similar properties; (vi) Liens securing Indebtedness incurred to finance
Indebtedness secured by a Lien permitted under this Indenture and is
permitted to be refinanced under this Indenture, provided that such Liens do
not extend to or cover any property or assets of the Company or any of its
Subsidiaries not securing the Indebtedness so refinanced; (vii) any interest
or title of a lessor or sublessor, or any lien in favor of a landlord,
arising under any real or personal property lease under which the Company or
any of its Subsidiaries is a lessee, sublessee or subtenant (other than any
interest or title and/or any Lien securing any Capitalized Lease Obligation);
(viii) Liens securing Capitalized Lease Obligations, Purchase Money
Indebtedness, purchase money mortgages or pledges or other purchase money
liens upon any property acquired by the Company or any Subsidiary of the
Company after the Issue Date which are acquired or held by such entity in the
ordinary course of business and are securing solely the purchase price or
lease rental of such property or are Indebtedness incurred solely for the
purpose of financing or refinancing the acquisition or lease of such property
(but only to the extent the Indebtedness secured by such liens shall
otherwise be permitted under the covenants set forth herein); (ix) with
respect to any Person, any Lien arising by reason of (a) any judgment, decree
or order of any court, so long as such Lien is being contested in good faith
and is adequately bonded, and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment, decree or order
shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired, (b) taxes not yet
delinquent or which are being contested in good faith, (c) security for
payment of workers' compensation or other insurance, (d) security for the
performance of tenders, contracts (other than contracts for the payment of
money) or leases, (e) deposits to secure public or
-17-
statutory obligations, or in lieu of surety or appeal bonds, (f) operation of
law in favor of carriers, warehouseman, landlords, mechanics, materialman,
laborers, employees or suppliers, incurred in the ordinary course of business
for sums which are not yet delinquent or are being contested in good faith by
negotiations or by appropriate proceedings which suspend the collection thereof,
(g) security for surety or appeal bonds, and (h) easements, rights-of-way,
zoning and similar covenants and restrictions and other similar encumbrances or
title defects which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries; and (x) other Liens securing Indebtedness if
the Indebtedness secured by the Lien, plus all other Indebtedness secured by
Liens (excluding Indebtedness secured by Liens permitted by (i) through (ix)
above) at the time of determination do not exceed $1,000,000.
"Permitted Payments" has the meaning ascribed to such term under
Section 4.07.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other class of Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation or
otherwise.
"principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Private Exchange Notes" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Notes in the form set forth on Exhibit A.
"Public Equity Offering" means any public offering of Common Stock
(other than Disqualified Capital Stock) of the Company which is undertaken
pursuant to a registration statement filed with and declared effective by the
Commission in accordance with the Securities Act.
-18-
"Purchase Money Indebtedness" means Indebtedness of the Company or
its Wholly-Owned Subsidiaries incurred for the purpose of financing all or any
part of the purchase price or the cost of installation, construction or
improvement of any property or equipment.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the Company, the Subsidiary
Guarantors and the Initial Purchaser and any other registration rights agreement
covering similar matters that may be executed and delivered by the Company and
the Subsidiary Guarantors in connection with the issuance of any Notes after the
Issue Date.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Reorganization Agreement" means the reorganization agreement as in
effect on the Issue Date, among the Company and its Subsidiaries, together with
the documents referred to therein, pursuant to which the Reorganization as
described in the Offering Memorandum will be consummated.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Guarantor Senior Debt; provided that if, and
for so long as, any Guarantor Senior Debt lacks such a representative, then the
Representative for such Guarantor Senior Debt shall at all times constitute the
holders of a majority in outstanding principal amount of such Guarantor Senior
Debt in respect of any Guarantor Senior Debt.
"Restricted Payment" means any of the following: (i) the declaration
or payment of any dividend or any other distribution on Capital Stock of the
Company or any payment made to the direct or indirect holders (in their
capacities as such) of Capital Stock of the Company or any Subsidiary of the
Company (other than (x) dividends or distributions payable solely in Capital
Stock (other than Disqualified Capital Stock) or in options, warrants or other
rights to purchase Capital
-19-
Stock (other than Disqualified Capital Stock), and (y) in the case of
Subsidiaries of the Company, dividends or distributions payable to the Company
or to a Wholly-Owned Subsidiary of the Company), (ii) the purchase, redemption
or other acquisition or retirement for value of any Capital Stock of the
Company, (iii) the making of any principal payment on, purchase, defeasance,
redemption, prepayment, decrease or other acquisition or retiring for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, of any Indebtedness of the Company that is subordinate or junior
in right of payment to the Notes; and (iv) the making of any Investment other
than an Investment permitted under clauses (i) through (x) of Section 4.11.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
promulgated under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"S Corporation" means an S corporation for purposes of the Internal
Revenue Code of 1986, as amended.
"Sale-Leaseback Transaction" means any direct or indirect
arrangement, or series of related arrangements, with any Person or to which any
Person is a party, providing for the leasing to the Company or to a Subsidiary
of the Company of any property, whether owned by the Company or by any
Subsidiary of the Company at the Issue Date or later acquired, which has been or
is to be sold or transferred by the Company or such Subsidiary of the Company 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.
"S&P" means Standard & Poor's Rating Service and its successors.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" shall have the meaning set forth in
the Registration Rights Agreement.
"Subsidiary," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock hav-
-20-
ing 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 (other than a corporation)
including a partnership in which the Company or a Subsidiary of the Company or
the Company and a Subsidiary of the Company, directly or indirectly, at the date
of determination thereof, has at least a majority ownership interest.
"Subsidiary Guarantor" means (i) Global Health Sub, Inc., a
California corporation, D&F Industries, Inc., a California corporation, Raven
Industries, a California corporation, Dynamic Products Inc., a California
corporation, and West Coast Sales, a California corporation and (ii) each of the
Company's Subsidiaries that in the future executes a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of the Indenture as a
Subsidiary Guarantor; provided that any Person constituting a Subsidiary
Guarantor as described above shall cease to constitute a Subsidiary Guarantor
when its respective Guarantee is released in accordance with the terms of this
Indenture.
"Surviving Entity" has the meaning ascribed to such term under
Section 5.01.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
(15 U.S. Code sections 77aaa-77bbbb) as in effect on the date of this Indenture
(except as provided in Section 8.03 hereof).
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer corporate trust accounts.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"U.S. Government Obligations" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
-21-
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt.
"Voting Capital Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers or other members of the governing body of such Person.
"Wholly-Owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person of which all the outstanding voting securities (other
than in the case of a foreign Subsidiary, directors' qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by such Person or any Wholly-Owned Subsidiary of such
Person; provided that a Wholly-Owned Subsidiary of the Company may provide for
earn out or other similar obligations in connection with the acquisition of a
business for the purpose of financing such acquisition, provided that the
Company at all times shall maintain ownership of at least 85% of the Capital
Stock of such Wholly-Owned Subsidiary.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Agent Members".................................. 2.14
"Available Proceeds"............................. 4.08
"Bankruptcy Law"................................. 6.01
"Change of Control Purchase Price"............... 4.13
"Covenant Defeasance"............................ 9.03
"Global Notes"................................... 2.01
"Incur".......................................... 4.06
"Legal Defeasance"............................... 9.02
"Legal Holiday".................................. 11.08
"Offshore Physical Notes"........................ 2.01
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"Paying Agent"................................... 2.03
"Physical Notes"................................. 2.01
"Registered Exchange"............................ 2.02
"Registrar"...................................... 2.03
"Required Filing Dates".......................... 4.02
"U.S. Physical Notes"............................ 2.01
Section 1.03. 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 used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company, the
Subsidiary Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
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(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A which is incorporated in and made part of
this Indenture. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Company may use "CUSIP" numbers in
issuing the Notes. The Company shall approve the form of the Notes. Each Note
shall be dated the date of its authentication.
The Notes offered and sold (i) in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global notes in registered
form, substantially in the form set forth in Exhibit A (the "Rule 144A Global
Notes") and (ii) pursuant to Regulation S shall be issued initially in the form
of one or more permanent global notes in registered form substantially in the
form set forth in Exhibit A, except that such Note need not bear the Private
Placement Legend (the "Regulation S Global Notes" and, together with the Rule
144A Global Notes, the "Global Notes"), in each case deposited with the Trustee,
as custodian for the Depository, duly executed by the Company and authenticated
by the Trustee as hereinafter provided and shall bear the legend set forth on
Exhibit B. The aggregate principal amount of any Global Note may from time to
time be increased or decreased by adjustments made on the records of the Trustee
as custodian for the Depository, as hereinafter provided and on the Schedule
annexed thereto.
Notes offered and sold in offshore transactions in reliance on
Regulation S may be issued in the form of certificated Notes in registered form,
substantially in the form set forth in Exhibit A (the "Offshore Physical
Notes"). Notes offered and sold in reliance on any other exemption from
registration under the Securities Act other than as described in the preceding
paragraph shall be issued, and Notes offered and sold in reliance on Rule 144A
may be issued, in the form of certificated Notes in registered form in
substantially the form set
-24-
forth in Exhibit A (the "U.S. Physical Notes"). The Offshore Physical Notes and
the U.S. Physical Notes are sometimes collectively herein referred to as the
"Physical Notes."
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two Officers
of the Company or an Officer and the Secretary of the Company. Such signature
may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate Notes for
original issue in the aggregate principal amount not to exceed $325,000,000 upon
a Company Request in one or more series, provided that the aggregate principal
amount of Notes on the Issue Date shall not exceed $225,000,000. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof. Upon receipt of a Company Request,
the Trustee shall authenticate an additional series of Notes in an aggregate
principal amount not to exceed $325,000,000 for issuance in exchange for all
Notes previously issued pursuant to an exchange offer registered under the
Securities Act (a "Registered Exchange") or pursuant to a Private Exchange (as
defined in the Registration Rights Agreement); provided that the aggregate
principal amount of Exchange Notes issued in exchange for the Notes originally
issued on the Issue Date shall not exceed $225,000,000. Exchange Notes may have
such distinctive series designation and "CUSIP" numbers as and such changes in
the form thereof as are specified in the Company Request referred to in the
preceding sentence. Exchange Notes issued pursuant to a Registered Exchange
shall not bear the Private Placement Legend. The Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and integral
multiples thereof.
The Trustee may appoint an authenticating agent to authenticate
Notes. Any such appointment shall be evidenced by an instrument signed by an
authorized officer of the Trustee, a
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copy of which shall be furnished to the Company. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same right as an Agent to deal with the
Company or an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Notes may be presented for payment ("Paying Agent") and an office or
agency where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Registrar shall provide the
Company a current copy of such register from time to time upon request of the
Company. The Company may have one or more co-registrars and one or more
additional paying agents. Neither the Company nor any Affiliate may act as
Paying Agent. The Company may change any Paying Agent, Registrar or co-registrar
upon notice to the Trustee but without notice to any Noteholder.
The Company shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture. 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 any Agent. If the
Company fails to maintain a Registrar or Paying Agent, or agent for service of
notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes
and this Indenture.
Section 2.04. Paying Agent to Hold Money in Trust.
On or before each due date of the principal of and interest on any
Notes, the Company shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest so becoming due. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and the Trustee may at
any time during the continuance of any Default, upon written request to a Paying
Agent, require such Paying Agent to forthwith pay to the Trustee all sums so
held in trust by such Paying Agent together with a complete accounting of such
sums.
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Upon doing so, the Paying Agent shall have no further liability for the money.
Section 2.05. Noteholder 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
Noteholders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee on or before each February 1 and August 1 in each year, 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
Noteholders.
Section 2.06. Transfer and Exchange.
When a Note is presented to the Registrar with a request to register
the transfer thereof, the Registrar shall register the transfer as requested if
its requirements are met and, when Notes are presented to the Registrar with a
request to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall make the exchange as requested;
provided that every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed by
the Holder thereof or his attorney duly authorized in writing. To permit
transfers and exchanges, upon surrender of any Note for registration of transfer
at the office or agency maintained pursuant to Section 2.03 hereof, the Company
shall execute and the Trustee shall authenticate Notes at the Registrar's
request. Any exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to
Sections 2.09, 3.06, 4.08, 4.14 or 8.05 hereof. The Trustee shall not be
required to register the transfers of Notes or to exchange Notes for a period of
15 days before selection of any Notes to be redeemed. The Trustee shall not be
required to exchange or register transfers of any Notes called or being called
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book-entry system maintained by the Holder of such
Global Note (or
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its agent), and that ownership of a beneficial interest in the Global Note shall
be required to be reflected in a book-entry.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable U.S. Federal or state securities law.
Prior to the due presentation for registration of transfer of any
Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and (subject to paragraph 2 of the Notes) interest, if any, on such
Note and for all other purposes whatsoever, whether or not such Note 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.
All Notes issued upon any transfer or exchange pursuant to this
Section 2.06 will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note presents evidence to the satisfaction of the Company and the Trustee
that the Note has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Note. An indemnity bond
may be required by the Company or the Trustee that is sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Note is replaced. Each of the
Company and the Trustee may charge for its expenses in replacing a Note. Every
replacement Note is an additional obligation of the Company. In the event any
such mutilated, lost, destroyed or wrongfully taken Note has become due and
payable, the Company in its discretion may pay such Note instead of issuing a
new Note in replacement thereof. The provisions of this Section 2.07 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to replacement or payment of mutilated, lost, destroyed or
wrongfully taken Notes.
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Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced or paid pursuant to Section 2.07, it ceases to
be outstanding until the Company and the Trustee receive proof satisfactory to
each of them that the replaced or paid Note is held by a bona fide purchaser.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and accrued interest on
Notes payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
Subject to Section 11.06, a Note does not cease to be outstanding
solely because the Company or an Affiliate holds the Note.
Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights, of definitive
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes upon
surrender of such temporary Notes at the office or agency maintained pursuant to
Section 2.03 hereof.
Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel and retain or, upon written request of the Company, may dispose of
or return to the Company in accordance with its normal practice, all Notes
surrendered for transfer, exchange, payment or cancellation and if such Notes
are disposed of, deliver a certificate of disposition to the Company unless the
Company instructs the Trustee in writing to deliver the Notes to the Company.
Subject to Section 2.07 hereof, the Company may not is-
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xxx new Notes to replace Notes in respect of which it has previously paid all
principal, premium and interest accrued thereon, or delivered to the Trustee for
cancellation.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date. The Company shall fix the special record date
and payment date in a manner satisfactory to the Trustee and provide the Trustee
at least 20 days notice of the proposed amount of defaulted interest to be paid
and the special record date and special payment date. At least 15 days before
the special record date, the Company shall mail or cause to be mailed to each
Noteholder at its address as it appears on the Notes register maintained by the
Registrar a notice that states the special record date, the payment date (which
shall be not less than five nor more than 10 days after the special record
date), and the amount to be paid. In lieu of the foregoing procedures, the
Company may pay defaulted interest in any other lawful manner satisfactory to
the Trustee.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment
Date and Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds U.S. legal tender sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Trustee to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
The principal and interest on Global Notes shall be payable to the Depository or
its nominee, as the case may be, as the sole registered owner and the sole
holder of the Global Notes represented thereby. The principal and interest on
Notes in certificated form shall be payable at the office of the Paying Agent.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number(s), and if
so, the Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number(s) printed in the notice or on the Notes, and that reli-
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ance may be placed only on the other identification numbers printed on the
Notes.
Section 2.14. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, 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 the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.15. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records and on the Schedule attached to the
Global Note the date and a decrease in the principal amount of the Global Note
in an amount equal to the principal amount of the
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beneficial interest in the Global Note to be transferred, and the Company shall
execute, and the Trustee shall upon receipt of a Company Request authenticate
and make available for delivery, one or more Physical Notes of like tenor and
amount.
(d) In connection with the transfer of Global Notes as an entirety
to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall, upon Company Request, authenticate and deliver,
to each beneficial owner identified by the Depository in writing in exchange for
its beneficial interest in the Global Notes, an equal aggregate principal amount
of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b), (c) or
(d) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.15, bear the Private Placement Legend.
(f) The Holder of any Global Note 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 Notes.
Section 2.15. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is subsequent to a
date which is two years after the later of the Issue Date and the last
date on which the Company or any of its Affiliates was the owner of such
Note or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit C hereto or (2) in the case of a transfer to a
Non-U.S. Person (including a QIB), the pro-
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posed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of (x)
the applicable certificate, if any, required by paragraph (i) above and
(y) instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records and on the
Schedule annexed to the Global Note the date and (if the transfer does not
involve a transfer of outstanding Physical Notes) a decrease in the principal
amount of a Global Note in an amount equal to the principal amount of the
beneficial interest in a Global Note to be transferred, and (b) the Company
shall execute and the Trustee shall authenticate and make available for delivery
one or more Physical Notes of like tenor and amount or, in the event such
transferee elects to hold such interest in the form of the Regulation S Global
Note, the Registrar shall reflect on its books and records and on the Schedule
annexed to the Regulation S Global Note the date and an increase in the
principal amount of the Regulation S Global Note in an amount equal to the
principal amount of the Physical Notes to be transferred, and the Trustee shall
cancel the Physical Notes so transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such
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information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Rule 144A Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depository's and
the Registrar's procedures, the Registrar shall reflect on its books and
records and on the Schedule annexed to the Rule 144A Global Note the date
and an increase in the principal amount of the Rule 144A Global Note in an
amount equal to the principal amount of the Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstances contemplated by paragraph (a)(i)(x) of this Section
2.15 exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) such Note has been
sold pursuant to an effective registration statement under the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
(e) Consent. By acceptance of any Note from the Initial Purchaser,
each Holder will be deemed to have consented to the transactions contemplated by
the Reorganization (as defined in the Purchase Agreement).
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.14 or this Section 2.15.
The Company shall have the
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right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable notice to
the Registrar.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07
hereof, at least 60 days prior to the Redemption Date or during such other
period as the Trustee may agree to, the Company shall notify the Trustee in
writing of the Redemption Date, the principal amount of Notes to be redeemed,
the redemption price and the paragraph of Section 3.07 pursuant to which the
Notes are to be redeemed, and deliver to the Trustee an Officers' Certificate
stating that such redemption will comply with the conditions contained in
Section 3.07 hereof, as appropriate.
Section 3.02. Selection by Trustee of Notes to Be Redeemed.
In the event that less than all of the Notes are to be redeemed at
any time, selection of the Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, that no Notes of $1,000
principal amount or less shall be redeemed in part. The Trustee may select for
redemption portions of the principal of the Notes that have denominations larger
than $1,000. The Trustee shall promptly notify the Company of the Notes selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture
unless the context otherwise requires, provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
Section 3.03. Notice of Redemption.
Notice of redemption shall be mailed by first class mail at least 30
but not more than 60 calendar days before the Redemption Date to each Holder of
Notes to be redeemed at its
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registered address. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed.
The notice shall identify the Notes to be redeemed (including the
CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date;
(7) the paragraph of Section 3.07 hereof pursuant to which the Notes
called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are being redeemed.
Upon a Company Request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price, including any premium, plus interest accrued to the
Redemption Date; provided that if the Redemption Date is after a regular
interest payment record date
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and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record
date; and provided, further, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
On and after the redemption date, interest will cease to accrue on Notes or
portions thereof called for redemption.
Section 3.05. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on each Redemption Date,
the Company shall deposit with the Paying Agent in immediately available funds
U.S. legal tender sufficient to pay the redemption price of and accrued interest
on all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Company to
the Trustee for cancellation.
On and after any Redemption Date, if U.S. legal tender sufficient to
pay the redemption price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the redemption price of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
on such Notes to the Redemption Date. If any Note called for redemption shall
not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Redemption.
(a) The Notes are redeemable, in whole or in part, at the option of
the Company, at any time on or after May 1, 2003 at the redemption prices
(expressed as percentages of principal amount), set forth below plus accrued and
unpaid in-
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terest to the Redemption Date, if redeemed during the twelve-month period
beginning on May 1 of the years indicated below:
Year Percentage
---- ----------
2003...................................... 105.500%
2004...................................... 103.667%
2005...................................... 101.833%
2006 and thereafter....................... 100.000%
(b) At any time, on or prior to May 1, 2001, the Company may, at its
option, use the Net Proceeds of one or more Public Equity Offerings to redeem up
to 35% of the principal amount of the Notes at a redemption price equal to 111%
of the principal amount thereof plus accrued and unpaid interest to the
Redemption Date; provided, however, that at least 65% of the principal amount of
Notes originally issued on the Issue Date remain outstanding immediately after
any such redemption (it being expressly agreed that for purposes of determining
whether this condition is satisfied, Notes owned by the Company or any of its
Affiliates shall be deemed not to be outstanding). In order to effect the
foregoing redemption with the proceeds of any Public Equity Offering, the
Company shall make such redemption not more than 90 days following the
consummation of any Public Equity Offering.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest (including all
Additional Amounts (as defined in the Registration Rights Agreement) as provided
in the Registration Rights Agreement) on the Notes on the dates and in the
manner provided in the Notes and this Indenture. An installment of principal or
interest shall be considered paid on the date it is due if the Trustee or Paying
Agent holds on that date U.S. legal tender designated for and sufficient to pay
such installment. The Company shall deliver written notice to the Trustee of any
Additional Amounts owed.
The Company shall pay interest on (i) overdue principal (including
post-petition interest in a proceeding under any
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Bankruptcy Law), and (ii) interest on overdue interest, to the extent lawful, at
the rate specified in the Notes.
Section 4.02. Provision of Financial Statements and Other Information.
(a) Subject to clause (b) hereof, the Company shall deliver to the
Trustee (including sufficient copies to be delivered to the Holders by the
Trustee as promptly as reasonably practicable) and each prospective holder of
Notes within 15 calendar days after the filing of the same with the Commission,
copies of the quarterly and annual reports 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 or pursuant to this Section 4.02; provided, however, that
the Company will deliver to the Trustee comparable information with respect to
the fiscal quarter preceding the Issue Date on or prior to June 15, 1998. At all
times when the Company is not subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Company will nonetheless file with the
Commission, to the extent permitted by the Commission, and irregardless of any
such filing provide the Trustee within 15 calendar days of the filing thereof
with the Commission (or within 15 calendar days of when filing would ordinarily
be required if not then permitted) (including sufficient copies to be delivered
to the Holders by the Trustee as promptly as reasonably practicable) with such
quarterly and annual reports and other reports specified in Sections 13 and
15(d) of the Exchange Act. The Company will also make such reports available to
prospective investors, securities analysts and broker-dealers upon their
request. In addition, for so long as any Notes remain outstanding, the Company
will furnish to the holders of Notes and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, and, to any beneficial holder of
Notes, if not obtainable from the Commission, information of the type that would
be filed with the Commission pursuant to the foregoing provisions upon the
request of any such Holder. Upon qualification of this Indenture under the TIA,
the Company and the Subsidiary Guarantors shall also comply with the provisions
of TIA Section 314(a).
(b) The Company will, upon request, provide to any Holder of Notes
or any prospective transferee of any such Holder any information concerning the
Company (including financial statements) necessary in order to permit such
Holder to sell or transfer Notes in compliance with Rule 144 and Rule 144A under
the Securities Act.
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Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead (as a defense or otherwise)
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury law or other law which would prohibit or forgive
the Company from paying all or any portion of the principal of, premium, if any,
and/or interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
(a) Each of the Company and each Subsidiary Guarantor shall deliver
to the Trustee, within 120 days after the end of each fiscal year and on or
before 60 days after the end of the first, second and third quarters of each
fiscal year, an Officers' Certificate (one of the signers of which shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company or the Subsidiary Guarantor, as the case may be) stating
that a review of the activities of the Company and its Subsidiaries and the
Subsidiary Guarantor during such fiscal year or fiscal quarter, as the case may
be, has been made under the supervision of the signing Officers with a view to
determining whether the Company and the Subsidiary Guarantor, as the case may
be, has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company and the
Subsidiary Guarantor, as the case may be, has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and, in the case
of Restricted Payments, listing all Restricted Payments for such quarter, and is
not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all or such Defaults or Events of Default of which he or she may have
knowledge and what action each is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest,
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if any, on the Notes are prohibited or if such event has occurred, a description
of the event and what action the Company or the Subsidiary Guarantor, as the
case may be, is taking or proposes to take with respect thereto.
(b) The Company will, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05. Taxes.
The Company shall, and shall cause each of its Subsidiaries to, pay
prior to delinquency all material taxes, assessments, and governmental levies
except as contested in good faith and by appropriate proceedings.
Section 4.06. Limitation on Additional Indebtedness.
The Company will not, and will not permit any of its Subsidiaries
to, create, incur, assume, issue, guarantee or in any manner become, directly or
indirectly, liable for or with respect to the payment of ("incur"), any
Indebtedness, including, without limitation, any Acquired Indebtedness, except
for Indebtedness falling within at least one of the following categories:
(a) Indebtedness under the Notes, the Guarantees and the Indenture,
and Indebtedness and Guarantees of such Indebtedness under the Indenture
properly incurred in clause (d) below;
(b) Indebtedness of the Company and its Subsidiaries outstanding on
the Issue Date after giving effect to the application of the proceeds from the
sale of the Notes;
(c) Indebtedness of the Company and the Subsidiary Guarantors under
one or more Acquisition Facilities in an aggregate principal amount at any one
time outstanding not to exceed $60,000,000;
(d) Indebtedness of the Company or any Subsidiary Guarantor (which
amount may, but need not be, incurred in whole or in part under the Acquisition
Facility), if at the time of incurrence and after giving effect thereto, no
Default or Event
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of Default exists and the Company's EBITDA Coverage Ratio, would have been at
least 2.0 to 1;
(e) obligations under Interest Rate Protection Obligations and
Currency Protection Obligations incurred in the ordinary course of business to
the extent that such obligations have been entered into for bona fide hedging
purposes and not for speculation or other purposes (which amount may, but need
not be, incurred in whole or in part under the Acquisition Facility); provided
that, with respect to Interest Rate Protection Obligations, the notional
principal amount of such Indebtedness does not exceed, at the time of the
incurrence of such Indebtedness, the principal amount of Indebtedness to which
such Interest Rate Protection Obligations relate;
(f) replacements, renewals, refinancings and extensions of the
Indebtedness incurred under the immediately preceding clauses (b) or (d);
provided that any such replacement, renewal, refinancing or extension (x) is
scheduled to mature either (a) no earlier than the Indebtedness being replaced,
renewed, refinanced or extended, or (b) after the maturity date of the Notes,
(y) the portion, if any, of such replacement, renewal, refinancing or extension
that is scheduled to mature on or prior to the maturity date of the Notes has a
weighted average life to maturity at the time such Indebtedness is incurred that
is equal to or greater than the weighted average life to maturity of the portion
of the Indebtedness being replaced, renewed, refinanced or extended that is
scheduled to mature on or prior to the maturity date of the Notes, and (z) shall
not exceed the principal amount (plus accrued interest and prepayment premium,
if any) of the Indebtedness being replaced, renewed, refinanced or extended;
(g) Purchase Money Indebtedness and Capitalized Lease Obligations of
the Company or any Subsidiary Guarantor in an aggregate amount which does not
exceed $2,500,000 at any time outstanding (which amount may, but need not be,
incurred in whole or in part under the Acquisition Facility);
(h) Indebtedness of the Company owing to and held by any
Wholly-Owned Subsidiary of the Company or Indebtedness of a Wholly-Owned
Subsidiary of the Company owing to and held by the Company or any other
Wholly-Owned Subsidiary of the Company; provided, however, that any subsequent
transfer or event which results in any such Wholly-Owned Subsidiary ceasing to
be a Wholly-Owned Subsidiary of the Company or any subsequent transfer of any
such Indebtedness (except to the Company or another Wholly-Owned Subsidiary of
the Company) would be deemed, in
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each case, to constitute the incurrence of such Indebtedness by the issuer
thereof;
(i) Indebtedness of the Company or a Wholly-Owned Subsidiary of the
Company in respect of performance bonds, bankers' acceptances, surety or appeal
bonds or similar instruments provided by the Company and its Wholly-Owned
Subsidiaries in the ordinary course of business and which do not secure other
Indebtedness; and
(j) other Indebtedness of the Company or any Subsidiary Guarantor
(which amount may be, but need not be, incurred in whole or in part under the
Acquisition Facility) not to exceed $10,000,000 at any time outstanding.
Section 4.07. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless:
(a) no Default or Event of Default will have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment;
(b) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made after the
Issue Date does not exceed the sum of (1) 50% of (a) the Company's
cumulative Consolidated Net Income (or in the event such cumulative
Consolidated Net Income is a deficit, minus 100% of such deficit) minus
(b) Permitted Payments since the Issue Date made pursuant to (v)(b) below;
provided that Permitted Payments made pursuant to (v)(a) and (v)(c) below
shall not count in this calculation, (2) 100% of the aggregate Net
Proceeds and the fair market value of marketable securities and property
received by the Company from the issue or sale, after the Issue Date, of
Capital Stock (other than Disqualified Capital Stock) of the Company
(excluding any such Net Proceeds received from issuances and sales
financed directly or indirectly using funds borrowed from the Company or
any Subsidiary of the Company, until and to the extent such borrowing is
repaid) or any Indebtedness or other securities of the Company convertible
into or exercisable for Capital Stock (other than Disqualified Capital
Stock) of the Company which has been so converted, exercised or exchanged,
as the case may be, and (3) $1,000,000; and
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(c) at the time of such Restricted Payment, the Company could incur
$1.00 of additional Indebtedness pursuant to clause (d) of Section 4.06
hereof.
For purposes of determining the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its Fair Market Value.
The provisions of this Section 4.07 will not prohibit the following
(each, a "Permitted Payment"): (i) the payment of any dividend within 60
calendar days after the date of declaration thereof, if at such date of
declaration such payment would comply with the provisions of this Indenture;
(ii) the payment, defeasance, purchase, redemption, prepayment, acquisition or
retirement of any Capital Stock of the Company or Indebtedness of the Company
that is subordinate in right of payment to the Notes, by conversion into or by
an exchange for, Capital Stock of the Company that is not Disqualified Capital
Stock or out of the Net Proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company) of other Capital Stock (other than
Disqualified Capital Stock) of the Company; provided that such net cash proceeds
shall not count for purposes of the calculations in paragraph (b) above; (iii)
the redemption or retirement of Indebtedness of the Company that is subordinate
in right of payment to the Notes in exchange for, by conversion into, or out of
the Net Proceeds of, a substantially concurrent sale of Indebtedness of the
Company (other than to a Subsidiary of the Company) that is contractually
subordinated in right of payment to the Notes and that is permitted to be
incurred in accordance with clause (f) of Section 4.06; (iv) purchases of
Capital Stock deemed to occur upon the exercise of stock options if such Capital
Stock represents a portion of the exercise price thereof; (v) (a) the payment to
shareholders of the Company pursuant to the Reorganization Agreement consistent
with past practices for the purpose of distributing net income generated by the
Company for the period of January 1, 1998 through the Issue Date; (b) so long as
the Company remains an S Corporation, the payment of distributions to
shareholders of the Company to the extent necessary to permit such shareholders
to pay federal and state income tax liabilities arising from income of the
Company allocable to such shareholders and attributable to them solely as a
result of the Company being an S Corporation for federal and state income tax
purposes and (c) the purchase of additional shares from the Company's
shareholders in an amount not to exceed $4,000,000; and (vi) payments to
purchase Capital Stock of the Company from management or employees of the
Company or any
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of its Subsidiaries, or their authorized representatives, upon the happening of
an event which provides for payment under any applicable plan, or upon the
death, disability or termination of employment of such employees, in aggregate
amounts under this clause (vi) not to exceed $500,000 in any fiscal year of the
Company.
In determining the amount of Restricted Payments permissible under
clause (b) above, amounts expended pursuant to clauses (i), (iv) and (vi) in the
preceding paragraph shall be included as Restricted Payments.
Section 4.08. Disposition of Proceeds of Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, consummate any Asset Sale unless (i)
the consideration received in respect of such Asset Sale is at least equal to
the Fair Market Value of the assets subject to such Asset Sale and (ii) at least
75% of the value of the consideration therefrom received by the Company or such
Subsidiary is in the form of (A) cash or Cash Equivalents or (B) the assumption
by the Person acquiring the assets in such Asset Sale of Indebtedness of the
Company or any of its Subsidiaries with the effect that none of the Company or
any of its Subsidiaries will have any obligation with respect to such
Indebtedness. The Company or the applicable Subsidiary, as the case may be, will
either (w) within 360 calendar days of consummation of the Asset Sale apply the
Net Asset Sale Proceeds from such Asset Sale to permanently repay Indebtedness
under the Acquisition Facility (for purposes of this clause, a repayment of any
amount owing under the Acquisition Facility shall be deemed a permanent
repayment to the extent the amount represented by such repayment is not drawn
upon by any Subsidiary of the Company for a period of nine months following such
repayment), or (x) within 360 calendar days of such Asset Sale apply the Net
Asset Sale Proceeds from such Asset Sale to an investment in properties and
assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of the
Company and its Subsidiaries existing on the Issue Date or in businesses
reasonably related thereto, including reasonably related extensions thereof or
(y) a combination of prepayment and investment permitted by the foregoing
clauses (w) and (x) or (z) apply any Net Asset Sale Proceeds from any Asset Sale
that are not applied pursuant to clause (w), (x) or (y) above (such amounts,
"Excess Proceeds") as provided below.
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(b) When the aggregate amount of Excess Proceeds equals or exceeds
$5,000,000, the Company will make an offer to purchase (an "Asset Sale Offer")
ratably from all Holders of the Notes, not more than 60 calendar days thereafter
(the "Excess Proceeds Payment Date") that portion of outstanding Notes
purchasable with such Excess Proceeds, at a price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, thereon to
the purchase date. To the extent that the Asset Sale Offer is not fully
subscribed, the Company may use the unutilized portion of such Excess Proceeds
for general corporate purposes. If the aggregate principal amount, plus accrued
and unpaid interest, if any, thereon of Notes validly tendered and not withdrawn
by Holders thereof exceeds the Excess Proceeds, Notes to be purchased will be
selected by the Trustee on a pro rata basis based upon amounts tendered (with
such adjustments as may be deemed appropriate by the Trustee so that only Notes
in denominations of $1,000, or integral multiples thereof, shall be purchased).
Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will be
reset to zero. Notice of an Asset Sale Offer will be mailed to the Holders as
shown on the register of Holders not less than 30 calendar days nor more than 60
calendar days before the Excess Proceeds Payment Date, with a copy to the
Trustee, and will comply with the procedures set forth herein. Upon receiving
notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole
or in part in integral multiples of $1,000 principal amount in exchange for
cash. An Asset Sale Offer shall remain open for a period of 20 Business Days or
such longer period as may be required by law.
(c) If the Company is required to make an Asset Sale Offer, the
Company shall within 30 days cause a notice of the Asset Sale Offer to be sent
at least once to the Dow Xxxxx News Service or similar business news service in
the United States. Notice of an Asset Sale Offer will be mailed by the Company
to the Trustee and the Holders not less than 30 calendar days nor more than 60
calendar days before the Excess Proceeds Payment Date. Such notice shall be sent
by first-class mail, postage prepaid, to the Trustee and to each Holder of the
Notes, at the address appearing in the register maintained by the Registrar of
the Notes, and shall state:
(i) that the Asset Sale Offer is being made pursuant to this Section
4.08 and the length of time the Asset Sale Offer will remain open;
(ii) the purchase price and the Excess Proceeds Payment Date;
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(iii) that any Note not tendered or accepted for payment will
continue to accrue interest;
(iv) that any Notes accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Excess Proceeds Payment
Date;
(v) that Holders accepting the offer to have their Notes purchased
pursuant to an Asset Sale Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day preceding the
Excess Proceeds Payment Date;
(vi) that Holders will be entitled to withdraw their acceptance of
the Asset Sale Offer if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the Excess Proceeds
Payment Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Notes delivered for purchase, and
a statement that such Holder is withdrawing his election to have such
Notes purchased;
(vii) that if the aggregate principal amount of Notes surrendered by
Holders exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Trustee so that only Notes in
denominations of $1,000 or integral multiples thereof, shall be
purchased);
(viii) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, provided that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of $1,000 and integral multiples thereof;
(ix) any other procedures that a Holder must follow to accept an
Asset Sale Offer or effect withdrawal of such acceptance; and
(x) the name and address of the Paying Agent.
On the Excess Proceeds Payment Date, the Company shall, to the
extent lawful, (i) accept for payment, on a pro rata basis to the extent
necessary, Notes or portions thereof
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tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price plus accrued and unpaid interest, if
any, on the Notes to be purchased or portions thereof, (iii) deliver or cause to
be delivered to the Trustee Notes so accepted together with an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 4.08. The
Paying Agent shall promptly mail to each Holder of Notes so accepted payment in
an amount equal to the purchase price for such Notes, and the Company shall
execute and issue, and the Trustee shall promptly authenticate and make
available for delivery to such Holder, a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered; provided that each such new
Note shall be issued in an original principal amount in denominations of $1,000
and integral multiples thereof. The Company will publicly announce the results
of the Asset Sale Offer on the Excess Proceeds Payment Date.
(d) In the event of the transfer of substantially all (but not all)
of the property and assets of the Company and its Subsidiaries as an entirety to
a Person in a transaction permitted under Section 5.01 of this Indenture, the
Surviving Entity shall be deemed to have sold the properties and assets of the
Company and its Subsidiaries not so transferred for purposes of this Section
4.08 of this Indenture, and will comply with the Asset Sale provisions of this
Indenture with respect to such deemed sale as if it were an Asset Sale. In
addition, the Fair Market Value of such properties and assets of the Company or
its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to
be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this
Indenture.
(e) If an offer is made to repurchase the Notes in an Asset Sale
Offer, the Company will comply with any tender offer rules under the Exchange
Act, including, but not limited to, Rule 14e-1 thereunder, and any other
applicable laws, rules and regulations in connection with any such offer.
Section 4.09. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, enter into any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service or the lending of any funds) with or for the benefit of
any of its Affiliates (each, an "Affiliate Transac-
-48-
tion"), other than such transactions as are entered into and conducted in good
faith and which are on terms that are fair to the Company or such Subsidiary and
no less favorable to the Company or such Subsidiary than those that could have
been obtained in a comparable transaction on an arm's-length basis from a Person
that is not an Affiliate. All Affiliate Transactions or series of Affiliate
Transactions involving aggregate payments or other market value in excess of
$1,000,000 must also be approved, prior to the consummation thereof, by a
majority of the disinterested members of the Board of Directors of the Company
and evidenced by a Board Resolution of the Company (or, if there is only one
disinterested director, it must be approved by such member). Any Affiliate
Transaction or series of Affiliate Transactions involving aggregate payments or
other market value in excess of $2,500,000, or as to which there are no
disinterested directors, is also subject to the further requirement that the
Company obtain an opinion of an Independent Financial Advisor with experience in
appraising the terms and conditions of the relevant type of transaction (or
series of transactions) stating that the transaction (or a series of
transactions) is fair, from a financial point of view, to the Company or such
Subsidiary.
(b) The foregoing restrictions will not apply to (i) transactions
between the Company and any of its Wholly-Owned Subsidiaries or among its
Wholly-Owned Subsidiaries; (ii) agreements in effect on the Issue Date and
amendments or renewals thereof that are not more disadvantageous to the Holders
in any material respect than the original agreements as in effect on the Issue
Date; (iii) transactions permitted by, and complying with the provisions of
Section 5.01; (iv) Restricted Payments made in accordance with Section 4.07; (v)
reasonable and customary fees and compensation and indemnification and similar
arrangements with officers, directors and employees of the Company and any of
its Subsidiaries and payments thereunder as determined in good faith by the
Company's Board of Directors; and (vi) transactions with customers, clients,
joint venture partners or purchasers or sellers of goods or services, in each
case, in the ordinary course of business (including, without limitation,
pursuant to joint venture agreements) and otherwise in compliance with the terms
of the Indenture which are fair to the Company or its Subsidiaries, in the
reasonable determination of the Board of Directors of the Company or the senior
management thereof, or are on terms at least as favorable as might reasonably
have been obtained at such time from an unaffiliated party.
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Section 4.10. Limitations on Liens.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(other than a Permitted Lien) of any kind upon any of its property or assets now
owned or hereafter acquired by it unless the Notes are equally and ratably
secured by such Lien; provided, that if the Indebtedness secured by such Lien is
subordinate or junior in right of payment to the Notes then the Lien securing
such Indebtedness shall be subordinate or junior in priority to the Lien
securing the Notes at least to the same extent as such Indebtedness is
subordinate or junior to the Notes.
Section 4.11. Limitations on Investments, Loans and Advances.
The Company will not, and will not permit any of its Subsidiaries
to, make any capital contributions, advances or loans to, or investments in
(including by way of guarantee), or purchases of Capital Stock or other
securities of, any Person (collectively, "Investments"), except: (i) Investments
by the Company in or to any Wholly-Owned Subsidiary and Investments or loans in
or to the Company or a Wholly-Owned Subsidiary by any Subsidiary (or a person
who becomes a Wholly-Owned Subsidiary as a result of such Investment or who
merges or consolidates into the Company or a Wholly-Owned Subsidiary of the
Company); (ii) Investments represented by accounts receivable created or
acquired in the ordinary course of business and Investments received in respect
thereof upon the insolvency of the payor; (iii) Investments under or pursuant to
Interest Rate Protection Obligations or Currency Protection Obligations in each
case entered into for hedging and not for speculative purposes; (iv) advances to
employees in the ordinary course of business not in excess of $1,000,000 at any
one time outstanding; (v) Investments, not exceeding $5,000,000 in the
aggregate, in joint ventures, partnerships or persons that are not Wholly-Owned
Subsidiaries, provided that such Investments are made solely for the purpose of
acquiring businesses or property reasonably related to the Company's business as
of the Issue Date, including reasonably related extensions thereof; (vi)
Investments in another Person which were received as consideration for an Asset
Sale in accordance with Section 4.08; (vii) Investments in Cash Equivalents;
(viii) Investments the payment for which consists exclusively of Capital Stock
(excluding Disqualified Capital Stock) of the Company; (ix) any transaction to
the extent it constitutes an Investment that is permitted by and
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made in accordance with the provisions of the second paragraph of the covenant
described under Section 4.09 and (x) Investments permitted to be made in
accordance with Section 4.07.
Section 4.12. Limitation on Sale-Leaseback Transactions.
The Company will not, and will not permit any of its Subsidiaries
to, enter into, renew or extend any Sale-Leaseback Transaction unless (i)(a)
after giving effect to such Sale-Leaseback Transaction on a pro forma basis, the
Company is in compliance with Section 4.10 hereof and could incur Indebtedness
pursuant to Section 4.06 hereof at least equal in amount to the Attributable
Debt associated with such Sale-Leaseback Transaction, and (b) the sale price in
such Sale-Leaseback Transaction is at least equal to the Fair Market Value of
such property, and the Company or such Wholly-Owned Subsidiary shall apply the
Net Asset Sale Proceeds of such sale in the manner provided under Section 4.08
hereof, or (ii) the lease is between the Company and a Wholly-Owned Subsidiary
of the Company or between Wholly-Owned Subsidiaries of the Company.
Section 4.13. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company will notify the
Holders in writing of such occurrence and will make an offer to purchase (the
"Change of Control Offer"), on a Business Day (the "Change of Control Payment
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Date") not later than 60 Business Days following the Change of Control Date, all
Notes then outstanding at a purchase price equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, if any, thereon to
the Change of Control Payment Date (such purchase price being hereinafter
referred to as the "Change of Control Purchase Price") in accordance with the
procedures set forth in this Section 4.14. All Notes properly tendered pursuant
to such Change of Control Offer and not withdrawn pursuant thereto will be
purchased on the Change of Control Payment Date. The Change of Control Offer
shall remain open for at least 20 Business Days and until the close of business
on the Change of Control Payment Date.
(b) Notice of a Change of Control Offer will be mailed by the
Company to the Trustee and the Holders not less than 30 calendar days nor more
than 60 calendar days before the Change of Control Payment Date. Such notice
shall be sent by first-class mail, postage prepaid, to the Trustee and to each
Holder of the Notes, at the address appearing in the register maintained by the
Registrar of the Notes, and shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.14 and that all Notes tendered will be accepted for payment, and
otherwise subject to the terms and conditions set forth herein;
(ii) the Change of Control Purchase Price and the Change of Control
Payment Date;
(iii) that any Note not tendered will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Change
of Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that Holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
preceding the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their acceptance if
the Paying Agent receives, not later than
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the close of business on the third Business Day preceding the Change of
Control Payment Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Notes purchased;
(vii) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered; provided that each Note purchased and each such
new Note issued shall be in an original principal amount in denominations
of $1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the Change of Control Purchase Price of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. The Paying Agent shall
promptly mail to each Holder of Notes so accepted payment in an amount equal to
the Change of Control Purchase Price for such Notes, and the Company shall
execute and issue, and the Trustee shall promptly authenticate and make
available for delivery to such Holder, a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered; provided that each such new
Note shall be issued in an original principal amount in denominations of $1,000
and integral multiples thereof.
The Company will comply with any tender offer rules under the
Exchange Act which may then be applicable, including, but not limited to, Rule
14e-1 thereunder, and any other applicable laws, rules and regulations, in
connection with any Change of Control Offer. To the extent that the provisions
of any United States federal or state securities laws and regulations conflict
with this Section 4.14, the Company will comply with such applicable securities
laws and regulations and will not be deemed to have breached its obligations
under this Section 4.14 by virtue thereof.
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Section 4.15. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Notes may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of 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 as set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office
of the Trustee set forth in Section 11.02 as such agency of the Company.
Section 4.16. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective or enter into any agreement with any Person that would cause
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of the Company to (a) pay dividends, in cash or otherwise, or make
any other distributions on its Capital Stock or any other interest or
participation in, or measured by, its profits owned by the Company or a
Subsidiary of the Company, (b) make any loans or advances to or pay any
Indebtedness owed to, the Company or any Subsidiary of the Company or (c)
transfer any of its properties or assets to the Company or to any Subsidiary of
the Company, except for (i) encumbrances or restrictions existing under or
contemplated by or by reason of the Notes, this Indenture, and the Guarantees,
(ii) encumbrances or restrictions existing under or contemplated by agreements
as in effect on the Issue Date,
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(iii) encumbrances or restrictions existing under the Acquisition Facility, (iv)
encumbrances or restrictions with respect to a Person that is not a Subsidiary
of the Company on the Issue Date, in existence at the time such Person becomes a
Subsidiary of the Company (but not created in contemplation of such Person
becoming such a Subsidiary), (v) encumbrances or restrictions existing under or
by reason of applicable law, (vi) encumbrances or restrictions existing by
reason of any Lien permitted under Section 4.10 hereof, (vii) encumbrances or
restrictions existing under any agreement for the sale of assets of the Company
or any Subsidiary of the Company, or the Capital Stock of any Subsidiary of the
Company, (viii) customary provisions restricting subletting or assignment of
leases entered into in the ordinary course of business and consistent with past
practices, (ix) Purchase Money Indebtedness, but only to the extent such
purchase money obligation only imposes encumbrances and restrictions on the
property so acquired, and (x) encumbrances or restrictions existing under any
agreement that refinances, replaces, renews or extends an agreement containing a
restriction permitted by clauses (i), (ii), (iii) and (iv) above; provided that
the terms and conditions of any such restrictions are not materially less
favorable to the Holders (other than with respect to clause (iii) above, in the
event the lenders require additional security) than those under or pursuant to
the agreement being replaced or the agreement evidencing the Indebtedness
refinanced as determined by the Board of Directors of the Company in their
reasonable and good faith judgment.
Section 4.17. Ownership of Capital Stock of Wholly-Owned Subsidiaries.
The Company will at all times maintain and cause each Subsidiary to
maintain, record and beneficial ownership of all of the Capital Stock (other
than directors' qualifying shares or an immaterial amount of shares required to
be owned by other Persons pursuant to applicable law) of each Subsidiary of the
Company; provided, that a Wholly-Owned Subsidiary of the Company may provide for
earn out or other similar obligations in connection with the acquisition of a
business for the purpose of financing such acquisition, provided that the
Company at all times shall maintain ownership of at least 85% of the Capital
Stock of such Wholly-Owned Subsidiary. The provisions of this Section 4.17 shall
not apply to the Capital Stock of any such Subsidiary that shall be disposed of
in its entirety or consolidated or merged with or into the Company or a
Subsidiary of the Company, in accordance with Sections 4.08 and 5.01 hereof.
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Section 4.18. Limitation on Creation of Subsidiaries.
The Company will not create or acquire, and will not permit any of
its Subsidiaries to create or acquire, any Subsidiary other than (i) a
Subsidiary existing as of the Issue Date, or (ii) a Subsidiary that is acquired
or created in connection with the acquisition by the Company of a related
business or asset; provided, however, that each Subsidiary acquired or created
pursuant to clause (ii) shall have executed and delivered a supplemental
indenture in substantially the form of Exhibit F hereto together with such other
documentation relating thereto as the Trustee shall require, including, without
limitation opinions of counsel as to the enforceability of such supplemental
indenture and as required by Section 10.08, pursuant to which such Subsidiary
will become a Subsidiary Guarantor; provided, further, however, subsidiaries
created for the sole purpose of consummating a merger or acquisition and having
total assets with a book value of less than $100,000 shall not be required to
comply with this clause (ii) until the merger or acquisition is consummated and
only to the extent such Subsidiary survives such merger or until such
Subsidiary's total assets exceed the above amount.
Section 4.19. Further Assurances.
Each of the Company and the Subsidiary Guarantors covenants and
agrees to do, execute, acknowledge and deliver or cause to be done, such further
acts as may be necessary to cause the mergers pursuant to the merger agreements
entered into in connection with the reorganization (as described in the Purchase
Agreement) to be in full force and effect, in order for the reorganization to be
consummated in accordance with the Reorganization Agreement.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
The Company will not, and will not permit any of its Subsidiaries
to, consolidate with or merge with or into, or sell, assign, convey, lease or
transfer all or substantially all of its properties and assets of the Company or
any of its Subsidiaries as an entirety to any Person in a single transac-
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tion or through a series of transactions, unless: (a) the Company or such
Subsidiary shall be the continuing Person or the resulting, surviving or
transferee Person (the "Surviving Entity") shall be a corporation, limited
liability company or partnership organized and existing under the laws of the
United States of America or any state thereof or the District of Columbia, (b)
the Surviving Entity shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all of the obligations of the Company or such Subsidiary, as the case
may be, under the Notes, the Guarantees and the Indenture; (c) immediately
before and immediately after giving effect to such transaction, or series of
transactions (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such transaction
or series of transactions), no Default or Event of Default shall have occurred
and be continuing; (d) the Company or the Surviving Entity shall immediately
after giving effect to such transaction or series of transactions (including,
without limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of the transaction or series of transactions) have
a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction or series of transactions; (e)
immediately after giving effect to such transaction or series of transactions,
the Company or the Surviving Entity could incur $1.00 of additional Indebtedness
pursuant to clause (d) of Section 4.06 hereof; and (f) the Company or such
Surviving Entity shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that such consolidation, merger, sale,
assignment, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction or series of transactions, such
supplemental indenture complies with the applicable provisions herein and that
all conditions precedent herein relating to the transaction or series of
transactions have been satisfied.
Section 5.02. Successor Person Substituted.
Upon any consolidation, merger, sale, assignment, conveyance or any
transfer of all or substantially all of the assets of the Company in accordance
with Section 5.01 above, the successor corporation formed by such consolidation
or into which the Company is merged or to which such sale, assignment,
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein, and
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thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(a) there is a Default in the payment of any interest on the Notes
when the same becomes due and the Default continues for a period of 30
calendar days;
(b) there is a Default in the payment of the principal of, or
premium, if any, on the Notes when the same becomes due;
(c) the Company fails to comply with any of the terms in Section
4.14 or 4.08 herein;
(d) the Company Defaults in the performance of, or breaches any
other covenant in this Indenture (other than Defaults specified in Section
6.01(a), (b) or (c) above) and continuance of such Default or breach for a
period of 30 calendar days after written notice specifying the Default to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in the aggregate principal amount of the
outstanding Notes;
(e) the Company or any Subsidiary fails (a) to make any payment when
due with respect to any other Indebtedness under one or more classes or
issues of Indebtedness in an aggregate principal amount of $5,000,000 or
more; or (b) to perform any term, covenant, condition, or provision of one
or more classes or issues of Indebtedness in an aggregate principal amount
of $5,000,000 or more, which failure, in the case of this clause (b),
results in an acceleration of maturity thereof;
(f) one or more judgments, orders or decrees for the payment of
money in excess of $5,000,000, either individually or in an aggregate
amount (to the extent not covered by a reputable third-party insurance
company as to which the insurer has acknowledged coverage), shall be
entered
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against the Company or any Subsidiary of the Company or any of their
respective properties and shall not be discharged and there shall have
been a period of 60 calendar days during which a stay of enforcement of
such judgment or order, by reason of pending appeal or otherwise, shall
not be in effect;
(g) the Company or any Subsidiary pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not able to pay its debts as they become due;
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Subsidiary in an
involuntary case,
(B) appoints a Custodian of the Company or any Subsidiary or
for all or substantially all of the property of the Company or any
Subsidiary, or
(C) orders the liquidation of the Company or any Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; and
(i) any of the Guarantees ceases to be in full force and effect or
any of the Guarantees is declared by a court of competent jurisdiction to
be null and void and unenforceable or any of the Guarantees is found by a
court of competent jurisdiction to be invalid or any of the Subsidiary
Guarantors denies its liability under its Guaran-
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tee (other than by reason of release of a Subsidiary Guarantor in
accordance with the terms herein).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising under
Section 6.01(g) or (h) with respect to the Company) occurs and is continuing,
then the Trustee or the Holders of at least 25% in aggregate principal amount of
the outstanding Notes may, by written notice to the Company and the Trustee (if
given by Holders), which notice shall specify the respective Event of Default,
declare the entire principal amount of all the outstanding Notes to be due and
payable immediately, together with all accrued and unpaid interest and premium,
if any, thereon (such aggregate principal amount, together with accrued and
unpaid interest and premium, if any, thereon, the "Default Amount") provided,
however, that so long as the Acquisition Facility shall be in effect any such
acceleration shall not be effective until the earlier of (x) five (5) business
days after receipt by the Company and the Representatives under the Acquisition
Facility of such acceleration notice and (y) the acceleration of any
Indebtedness under the Acquisition Facility. Upon any such declaration (except
as provided in the preceding sentence), the Default Amount shall become due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (g) or (h) occurs with respect to the Company and is
continuing, then the Default Amount 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.
After a declaration of acceleration, the Holders of a majority in
aggregate principal amount of outstanding Notes may, by notice to the Trustee,
rescind such declaration of acceleration if all existing Events of Default have
been cured or waived (other than the nonpayment of the Default Amount that has
become due solely as a result of the acceleration), and if the rescission of
acceleration would not conflict with any judgment or decree.
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Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder 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 to the
extent permitted by law.
Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a
majority in aggregate principal amount of the outstanding Notes have the right
to waive past Defaults under this Indenture except a Default in the payment of
the principal of, or interest or premium, if any, on any Note, which cannot be
waived without the consent of the Holder of such Note or in respect of a
covenant or a provision which cannot be modified or amended without the consent
of all Holders. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding
Notes have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
Noteholder not taking part in such direction, and the Trustee shall have the
right to decline to follow any
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such direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or if the Trustee in good faith
shall, by a Trust Officer, determine that the proceedings so directed may
involve it in personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee which 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.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, no Holder has any right to institute
any proceeding with respect to this Indenture or any remedy thereunder unless:
(1) the Holders of at least 25% in aggregate principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(2) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;
(3) the Trustee fails to institute such proceeding within 15
calendar days after receipt of such notice and the indemnity; and
(4) the Trustee has not received directions inconsistent with such
written request during such 15-day period by the Holders of a majority in
aggregate principal amount of the outstanding Notes.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if any, or
accrued interest on any Note held by such Holder on or after the respective due
dates expressed in or provided for in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
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Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(a), (b) or (c) hereof 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 of unpaid principal and accrued
interest remaining unpaid, together with interest on overdue principal and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate then borne by the Notes, and
such further amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee 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 (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction, pursuant to Section 6.10, of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Noteholder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to
the Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
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Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as 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 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default known to the Trustee has occurred and is
continuing, the Trustee shall, other than with respect to any action taken by
the Trustee as directed by a majority in aggregate principal amount of the
Holders of outstanding Notes, exercise such rights and powers vested in it by
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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 known to
the Trustee:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(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 but,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02, 6.04 and 6.05 hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights or powers if it determines in the
exercise of its reasonable discretion that repayment of such funds or
adequate indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
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(d) Whether or not therein expressly so provided, paragraphs (a),
(b) and (c) of this Section 7.01 shall govern every provision of this Indenture
that in any way relates to the Trustee.
(e) The Trustee is not under any obligation to exercise any of its
rights or powers at the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee indemnity or security satisfactory to
it in its reasonable discretion against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by the law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably 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.
(2) Before the Trustee acts or refrains from acting with respect to
any matters contemplated by this Indenture or the Notes it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 11.05 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through Agents and shall not be responsible
for the misconduct or negligence of any agent so long as the appointment
of such agent was made with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to
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matters of law shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(6) Subject to the provisions of Sections 7.01 and 7.02, the Trustee
shall not be charged with notice or knowledge of any Default or Event of
Default unless a Trust Officer shall have actual knowledge thereof or the
Trustee shall have received notice thereof in accordance with Section
11.02 from the Company, any Subsidiary Guarantor, any Holder or any
Representative.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company, or any Affiliates thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Notes or the Guarantees,
it shall not be accountable for the Company's use of the proceeds from the sale
of Notes or any money paid to the Company pursuant to the terms of this
Indenture and it shall not be responsible for any statement in the Notes or the
Guarantees other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Noteholder notice of the Default within
30 days after it occurs. Except in the case of a Default in payment of the
principal of, or premium, if any, or interest on any Note the Trustee may
withhold the notice if and so long as the board of directors of the Trustee, the
executive committee or any trust committee of such board and/or its Trust
Officers in good faith determine(s) that withholding the notice is in the
interests of the Noteholders.
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Section 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after May 15 of
any year, commencing the May 15 following the date of this Indenture, the
Trustee shall mail to each Noteholder a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA Section 313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all registered Holders of Notes, as the names and addresses
of such Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose.
A copy of each report at the time of its mailing to Noteholders
shall be filed with the Commission and each stock exchange on which the Notes
are listed. The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its services hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and its officers,
directors, employees and agents and any predecessor Trustee and its officers,
directors, employees and agents for, and hold it harmless against, any and all
loss, damage, claim, liability or expense (including the reasonable fees and
expenses of its counsel), including taxes (other than taxes based on the income
of the Trustee) incurred by it in connec-
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tion with the acceptance or administration of its trusts and duties under this
Indenture including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder (including, without limitation, settlement
costs). The Trustee shall notify the Company in writing promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder except to the extent the Company is prejudiced
thereby. The obligations of the Company under this section shall survive the
termination of this Indenture, final payment of the Notes, and resignation or
removal of the Trustee.
Notwithstanding the foregoing, the Company need not reimburse the
Trustee for any expense or indemnify it against any loss or liability incurred
by the Trustee through its negligence or bad faith. To secure the payment
obligations of the Company in this Section 7.07, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee
except such money or property held in trust to pay principal of and interest on
particular Notes.
The Company agrees to pay the reasonable fees and expenses of
Trustee's counsel as promptly as reasonably practicable after the date of the
execution of this Indenture in connection with the review, negotiation,
execution and delivery of this Indenture.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election if:
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(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an 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 or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee, except as provided in the preceding paragraph.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, subject to
Section 6.11 hereof, any Noteholder who has been a bona fide Holder of a Note
for at least six months may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, 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. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
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Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee
shall have (or, in the case of a corporation included in a bank holding company
system, the related bank holding company shall have) a combined capital and
surplus of at least $50,000,000 as set forth in its (or its related bank holding
company's) most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the provision in Section 310(b)(1),
subject to the penultimate paragraph thereof. The provisions of TIA Section 310
shall apply to the Company as obligor of the Notes.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company as obligor
of the Notes.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the
Notes (whether such sums have been paid to it by the Company or by
any obligor on the Notes) in trust for the benefit of Holders of the
Notes or the Trustee;
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(B) that it will at any time during the continuance of any
Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full
accounting thereof; and
(C) that it will give the Trustee written notice of any
failure of the Company (or by any obligor on the Notes) in the
payment of any installment of the principal of, premium, if any, or
interest on, the Notes when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Subsidiary Guarantors, when authorized by a
Board Resolution of the Company and the Subsidiary Guarantors, and the Trustee
may amend or supplement this Indenture or the Notes without notice to or consent
of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(3) to comply with any requirements of the Commission under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not adversely affect the rights of any Noteholder;
(5) to add Guarantees with respect to the Notes; or
(6) to release Guarantees when permitted by this Indenture.
The Trustee is hereby authorized to join with the Company and the
Subsidiary Guarantors in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trus-
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tee shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture or
otherwise.
Section 8.02. With Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may modify or
supplement this Indenture or the Notes with the written consent of the Holders
of not less than a majority in aggregate principal amount of the outstanding
Notes without notice to any Noteholder. The Holders of not less than a majority
in aggregate principal amount of the outstanding Notes may waive compliance in a
particular instance by the Company or a Subsidiary Guarantor with any provision
of this Indenture or the Notes without notice to any Noteholder. Subject to
Section 8.04, without the consent of each Noteholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the percentage in principal amount of outstanding Notes
whose Holders must consent to an amendment, supplement or waiver, or
consent to take any action under this Indenture or Notes;
(2) reduce the rate of or change the time for payment of interest
(including Additional Amounts (as defined in the Registration Rights
Agreement)) on any Note;
(3) reduce the principal of, or premium on, or change the stated
maturity, of any Note;
(4) change the currency in which the principal of any Note or the
accrued interest or premium (if any) thereon is payable;
(5) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes in
accordance with Section 3.07 hereof, or change the time at which a Note
may be redeemed;
(6) waive a Default in the payment of the principal of, or interest
or premium on, or any redemption payment with respect to, any Note;
(7) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
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(8) affect the ranking of the Notes or any Guarantee in a manner
adverse to the Holders;
(9) amend, change or modify in any material respect, any obligation
of the Company to make and consummate a Change of Control Offer in the
event of a Change of Control or, make and consummate an Asset Sale Offer
in the event of an Asset Sale or modify any of the material provisions
with respect to such offers;
(10) impair the right set forth in this Indenture to institute suit
for the enforcement of any payment on or with respect to the Notes (other
than any such payment that has become due solely as a result of the
acceleration of the maturity of the Notes); or
(11) release any Subsidiary Guarantor from any of its obligations
under its Guarantee or this Indenture otherwise than in accordance with
the terms of this Indenture.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board Resolution
of the Company and the Subsidiary Guarantors authorizing the execution of any
such supplemental indenture, and upon the receipt by the Trustee of evidence
reasonably satisfactory to the Trustee of the consent of the Noteholders as
aforesaid and upon receipt by the Trustee of the documents described in Section
8.06 hereof, the Trustee shall join with the Company and the Subsidiary
Guarantors in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
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Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date unless the consent of the requisite number of Holders has
been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (11) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee may request the Holder of the Note to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Com-
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pany or the Trustee so determines, the Company in exchange for the Note shall
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
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 or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company and each Subsidiary Guarantor may not sign an
amendment or supplement until the Board of Directors of the Company and each
such Subsidiary Guarantor approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for) and the Trustee, on written demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either:
(a) all Notes theretofore authenticated and delivered (other than
(A) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07 hereof and (B) Notes for
whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company) have been delivered to the Trustee for
cancellation; or
(b) (i) all such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be
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deposited with the Trustee in trust for the purpose an amount of U.S.
legal tender sufficient to pay and discharge the entire Indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation, for
the principal of, premium, if any, and interest to the date of such
deposit; (ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and (iii) the Company has delivered to
the Trustee (A) irrevocable instructions to apply the deposited money
toward payment of the Notes at the maturity thereof, and (B) an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b)(i) of this
Section 9.01, the obligations of the Trustee under Section 9.05, shall survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be discharged
from its obligations with respect to the Notes (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Notes and to have satisfied all its other obligations under such Notes
and this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 9.06 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Notes to receive solely from the trust funds described in
Section 9.04 hereof and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (B) the Company's obligations with respect to such Notes
under Article 2 and Section 4.15 hereof, (C) the rights, powers, trusts, duties,
and immunities of the Trustee hereunder (including claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9.
Subject to compliance with this Article 9, the Company may exercise its option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the Notes.
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Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the
Company and the Subsidiary Guarantors shall be released from their respective
obligations under Sections 4.02, 4.04 through 4.12, 4.14 and 4.16 through 4.18
hereof, and clauses (d) and (e) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 9.04
hereof are satisfied (hereinafter, "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that 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 specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) U.S.
legal tender in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than the due date
of any payment, money in an amount, or (C) a combination thereof,
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 and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of, premium, if any, and accrued interest on the outstanding Notes at the
maturity date of such principal, premium, if any, or interest, or on dates
for payment and redemption
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of such principal, premium, if any, and interest with respect to
outstanding Notes selected for redemption in accordance with the terms of
this Indenture and of the Notes; provided, however, that the Trustee (or
other qualifying trustee) shall have received an irrevocable written order
from the Company instructing the Trustee (or other qualifying trustee) to
apply such money or the proceeds of such U.S. Government Obligations to
said payments with respect to the Notes;
(2) no Event of Default or Default specified in Section 6.01(g) or
(h) shall have occurred and be continuing on the date of such deposit, or
shall have occurred and be continuing at any time during the period ending
on the 91st day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference period under
any Bankruptcy Law applicable to the Company in respect of such deposit
(it being understood that this condition shall not be deemed satisfied
until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute default under any other agreement
or instrument to which the Company is a party or by which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended;
(6) in the case of an election under Section 9.02 above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there has
been a change in any applicable Federal income tax law with the effect
that, and such opinion shall confirm that, the Holders of the outstanding
Notes or persons in their positions will not recognize income, gain or
loss for Federal income tax purposes solely as a result of such Legal
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Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner, including as a result of prepayment, and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Notes 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;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof
(as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(10) before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date
in accordance with Section 3.07(a) hereof.
Section 9.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.01 or 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, but such
money need not be segregated from other funds except to the extent required by
law.
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The Company and the Subsidiary Guarantors shall pay and indemnify
the Trustee (on a joint and several basis) against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.01 or 9.04 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 Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.01 or 9.04 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 which
would then be required to be deposited to effect an equivalent discharge under
Section 9.01, Legal Defeasance or Covenant Defeasance.
Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof 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 and each Subsidiary Guarantor's obligations
under this Indenture, the Notes and the Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 9.05 hereof; provided,
however, that if the Company or any Subsidiary Guarantor has made any payment of
principal of, premium, if any, or accrued interest on any Notes because of the
reinstatement of their obligations, the Company and each such Subsidiary
Guarantor shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Company (or,
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if such moneys had been deposited by any Subsidiary Guarantor, to such
Subsidiary Guarantor) and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent in trust
for the payment of the principal of, or premium, if any, or interest on any Note
that are not applied but remain unclaimed by the Holder of such Note for two
years after the date upon which the principal of, or premium, if any, or
interest on such Note shall have respectively become due and payable shall be
repaid to the Company (or, if appropriate, the applicable Subsidiary Guarantor)
upon Company Request; and the Holder of such Note entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company and the Subsidiary Guarantors for the payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease.
Section 9.09. Qualifying Trustee.
Any trustee appointed pursuant to Section 9.04 for the purpose of
holding U.S. Legal Tender and/or U.S. Government Obligations deposited pursuant
to that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon
which certificate the Trustee shall be entitled to conclusively rely, that all
conditions precedent provided for herein to the related Legal Defeasance or
Covenant Defeasance have been complied with. In no event shall the Trustee be
liable for any acts or omissions of said trustee.
ARTICLE 10
SUBORDINATED GUARANTEES
SECTION 10.01. Unconditional Guarantees of the Subsidiary Guarantors;
Subordination; etc.
Subject to the provisions of this Article Ten, each Subsidiary
Guarantor hereby unconditionally and irrevocably guarantees, on a subordinated
and on a joint and several basis (such guarantees to be referred to collectively
herein as the
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"Guarantees") to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or the obligations of
the Company or any Subsidiary Guarantor to the Holders or the Trustee hereunder
or thereunder, that: (a) the principal of, premium, if any, and interest on the
Notes (and any Additional Amount payable thereon) shall be duly and punctually
paid in full when due, whether at maturity, xxxx xxxxxxxxxx, xxxx xxxxxxxxxx at
the option of Holders pursuant to the provisions of the Notes relating thereto,
by acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Notes and all other
obligations of the Company or the Subsidiary Guarantors to the Holders or the
Trustee hereunder or thereunder (including amounts due the Trustee under Section
7.07 hereof) and all other obligations shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed,
or failing performance of any other obligation of the Company to the Holders
under this Indenture or under the Notes, for whatever reason, the Subsidiary
Guarantors shall, subject to the subordination provisions hereof, be obligated
to pay, or to perform or cause the performance of, the same immediately. An
Event of Default under this Indenture or the Notes shall constitute an event of
default under the Guarantees, and, subject to this Article Ten shall entitle the
Holders of Notes to accelerate the obligations of the Subsidiary Guarantors
hereunder in the same manner and to the same extent as the obligations of the
Company.
Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any Subsidiary Guarantor,
the recovery of any judgment against the Company, any action to enforce the
same, whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Subsidiary Guarantors. To the fullest extent permitted by law,
each Subsidiary Guarantor hereby waives the benefit of diligence, presentment,
demand of payment, filing of
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claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and these Guarantees. The Guarantees are guarantees of payment and not
of collection. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or to the Subsidiary Guarantors, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or the Subsidiary Guarantors, any amount paid by the Company or the
Subsidiary Guarantors to the Trustee or such Holder, these Guarantees, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Subsidiary Guarantor further agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand, (a) subject to this
Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of these
Guarantees, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Six
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Subsidiary Guarantors for the purpose of the Guarantees.
The payment by the Subsidiary Guarantors of all obligations on these
Guarantees is subordinated, to the extent and in the manner provided in this
Article Ten, in right of payment to the prior payment in full, in cash, of all
obligations on Guarantor Senior Debt, which subordination is for the benefit of
and enforceable by the holders of such Guarantor Senior Debt.
Upon any payment or distribution of assets of the Subsidiary
Guarantors of any kind or character, whether in cash, property or securities, to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the
Subsidiary Guarantors, or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to the Subsidiary Guarantors
or their property, whether voluntary or involuntary, all obligations with
respect to all Guarantor Senior Debt shall first be paid in full, in cash,
before any payment or distribution of any kind or character, whether in cash,
property, or securities, is made on account of any Obligations on the Notes or
Guarantees or for the acquisition of all or any
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part of the Guarantees for cash or property or otherwise; and until all such
Obligations with respect to all Guarantor Senior Debt are paid in full, in cash,
any distribution to which the holders of the Guarantees would be entitled but
for the subordination provisions of this Article 10 will be made to the holders
of Guarantor Senior Debt as their interests may appear.
If (i) any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, premium and interest on, unpaid drawings for letters of credit
issued in respect of, or fees with respect to, or any other obligation in
respect of, any Guarantor Senior Debt, or (ii) any other default occurs and is
continuing with respect to any Guarantor Senior Debt resulting in the
acceleration of the maturity of all or any portion of such Guarantor Senior
Debt, then, in the case of either of the foregoing clause (i) and (ii), no
payment shall be made by or on behalf of the Subsidiary Guarantors or any other
person on their behalf with respect to any obligations on the Guarantee or to
acquire all or any part of the obligations covered by the Guarantees for cash or
property or otherwise; provided, however, that, the foregoing provisions shall
not restrict the Company from making payments of principal or interest on or
with respect to the Notes (including, without limitation, by redemption,
repurchase or other acquisition). In addition, if any other event of default
occurs and is continuing (or if such an event of default would occur upon any
payment with respect to the Guarantees) with respect to the Guarantor Senior
Debt, as such event of default is defined in the instrument creating or
evidencing or guaranteeing such Guarantor Senior Debt permitting the holders of
such Guarantor Senior Debt then outstanding, or their Representative, to
accelerate the maturity thereof (or the obligations guaranteed thereby) and if
the respective Representative for the respective Guarantor Senior Debt gives
written notice of the event of default to the Trustee (a "Default Notice"),
then, unless and until the date, if any, on which all Guarantor Senior Debt to
which such event of default relates is paid in full in cash or the
Representative for the respective Guarantor Senior Debt gives notice that all
events of default have been cured or waived or have ceased to exist or the
Trustee receives written notice from the Representative for the respective
Guarantor Senior Debt terminating the Blockage Period (as defined below), during
the 180 days after the delivery of such Default Notice (the "Blockage Period"),
none of the Subsidiary Guarantors or any other person on their behalf shall (x)
make any payment with respect to any obligations evidenced by the Guarantees or
(y) acquire all or any part of the obligations covered by the
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Guarantees for cash or property or otherwise. Notwithstanding anything herein to
the contrary, in no event will a Blockage Period extend beyond 180 days from the
date of the commencement thereof. Only one such Blockage Period may be commenced
within any period of 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any Blockage Period with
respect to the Guarantor Senior Debt shall be, or be made, the basis for the
commencement of a second Blockage Period by the Representative of such Guarantor
Senior Debt whether or not within a period of 360 consecutive days, unless such
event of default shall have been cured by the Subsidiary Guarantors or waived
for a period of not less than 90 consecutive days.
If a payment or other distribution is made to Holders that because
of this Section 10.01 should not have been made to them, the Holders who receive
the payment or other distribution shall hold it in trust for holders of
Guarantor Senior Debt and promptly pay it over to the holders of Guarantor
Senior Debt as their interests may appear.
This Section 10.01 defines the relative rights of the Holders and
the holders of Guarantor Senior Debt. Nothing in this Section 10.01 shall:
(1) impair, as between the Company and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal of
and interest on the Notes in accordance with their terms; or
(2) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Guarantor
Senior Debt to receive distributions otherwise payable to Holders as and
to the extent provided in this Section 10.01.
No right of any present or future holders of any Guarantor Senior
Debt to enforce the subordination provisions contained in this Section 10.01
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company, the Subsidiary Guarantors, or by any act or
failure to act in good faith by any such holder, or by any noncompliance by the
Company or the Subsidiary Guarantors with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Debt may,
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at any time and from time to time, without the consent of or notice to the
holders of any Indebtedness of the Company or the Subsidiary Guarantors, without
incurring responsibility to the holders of any Indebtedness of the Company or
the Subsidiary Guarantors, and without impairing or releasing the subordination
provisions contained in this Section 10.01, or the obligations hereunder of the
holders of the Indebtedness of the Company or the Subsidiary Guarantors, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, the Guarantor Senior Debt
or any instrument evidencing the same or any agreement under which Guarantor
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Guarantor Senior Debt or
fail to perfect or delay the perfection of any such lien; (iii) release any
person liable in any manner for the collection of Guarantor Senior Debt; and
(iv) exercise or refrain from exercising any rights against the Company or the
Subsidiary Guarantors or any other Person.
Each Holder of the Notes by such Holder's acceptance thereof
authorizes and expressly directs the Trustee on such Holder's behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provisions contained in this Section 10.01 and to protect the rights of the
Holders pursuant to this Indenture, and appoints the Trustee such Holder's
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Subsidiary Guarantors (or any
of them)(whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshaling of assets and
liabilities of the Subsidiary Guarantors (or any of them)) tending towards
liquidation of the business and assets of the Subsidiary Guarantors (or any of
them), the immediate filing of a claim for the unpaid balance of the Notes in
the form required in said proceeding and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form required in
such proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Guarantor Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Guarantor Senior Debt or their Representative to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder
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thereof, or to authorize the Trustee or the holders of Guarantor Senior Debt or
their Representative to vote in respect of the claim of any Holder in any such
proceeding.
The failure to make a payment on or in respect of the Notes by
reason of any provision in this Section 10.01 shall not be construed as
preventing the occurrence of a Default. Nothing in this Section 10.01 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Notes.
Notwithstanding anything contained in this Section 10.01 to the
contrary, payments from money or the proceeds of U.S. Government Obligations
held in trust under Article Nine by the Trustee for the payment of principal of
and interest on the Notes shall not be, so long as such monies (x) were not
directly deposited by the Subsidiary Guarantors or (y) to the extent directly
deposited by the Subsidiary Guarantors, the payment thereof at the time of
deposit did not violate the provisions of this Section 10.01, subordinated to
the prior payment of any Guarantor Senior Debt or subject to the restrictions
set forth in this Section 10.01, and none of the Holders shall be obligated to
pay over any such amount to the Company or any holder of Guarantor Senior Debt
or any other creditor of the Company.
After all Guarantor Senior Debt is paid in full in cash or Cash
Equivalents and until the Notes are paid in full, the Noteholders shall be
subrogated to the rights of holders of such Guarantor Senior Debt to receive
distributions applicable to such Guarantor Senior Debt. A distribution made
under this Article Ten to holders of such Guarantor Senior Debt which otherwise
would have been made to Noteholders is not, as between the Subsidiary Guarantors
and the Noteholders, a payment by the Subsidiary Guarantors on such Guarantor
Senior Debt.
Notwithstanding anything herein to the contrary, the Trustee or
Paying Agent may continue to make payments on the Notes 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 receives notice satisfactory to it that payments may
not be made under this Article Ten. The Subsidiary Guarantors, the Company, a
Representative or a holder of Guarantor Senior Debt may give the notice;
provided, however, that, if the holders of Guarantor Senior Debt have a
Representative, only the Representative may give the notice.
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The Trustee in its individual or any other capacity may hold
Guarantor Senior Debt 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 Ten with respect to any Guarantor Senior Debt which may at any time to
be held by it, to the same extent as any other holder of such Guarantor Senior
Debt; and nothing in Article 7 shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article Ten shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 7.07.
Upon any payment or distribution pursuant to this Article Ten, the
Trustee and the Noteholders 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 this Section 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 Noteholders or (iii) upon the Representative for the
holders of Guarantor Senior Debt or if there is no such Representative, upon any
holder of Guarantor Senior Debt, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of such
Guarantor Senior Debt, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Ten. 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
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Guarantor Senior
Debt 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 Ten 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 Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Debt and shall not be liable to any such holders if
it shall mistakenly pay over or distribute to Noteholders or any other Person,
money or assets to which any holders of Guarantor Senior Debt shall be entitled
by virtue of this Article Ten or otherwise.
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Section 10.02. Costs and Expenses.
Each Subsidiary Guarantor agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Article 10.
Section 10.03. Limitation on Liability.
Any term or provision of this Indenture to the contrary
notwithstanding, the obligations of each Subsidiary Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Guarantee, result in the obligations of such Subsidiary Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
In the event that the Guarantee of any Subsidiary Guarantor shall be
unenforceable in accordance with its terms, such Guarantee shall be deemed to be
modified to the extent and in the manner necessary to remain enforceable to the
maximum extent permitted under applicable law.
Section 10.04. Successors and Assigns.
This Article 10 shall be binding upon each Subsidiary Guarantor and
its successors and assigns and shall enure to the benefit of the holders of
Guarantor Senior Debt and the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Notes shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this
Indenture.
Section 10.05. No Waiver.
Neither a failure nor a delay on the part of either the Trustee or
the Holders in exercising any right, power or privilege under this Article 10
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and
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not exclusive of any other rights, remedies or benefits which either may have
under this Article 10 at law, in equity, by statute or otherwise.
Section 10.06. Modification.
Subject to Article Eight, no modification, amendment or waiver of
any provision of this Article 10, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
Section 10.07. Release of Subsidiary Guarantor.
Subject to Section 5.01, a Subsidiary Guarantor shall be released
from all of its obligations under its Guarantee if:
(i) the Subsidiary Guarantor has sold all or substantially all of
its assets or the Company and its Subsidiaries have sold all of the
Capital Stock of the Subsidiary Guarantor owned by them, in each case in a
transaction in compliance with Sections 4.08 and 5.01 hereof; or
(ii) the Subsidiary Guarantor merges with or into or consolidates
with, or transfers all or substantially all of its assets to, the Company
or another Subsidiary Guarantor in a transaction in compliance with
Section 5.01 hereof;
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 10.08. Execution of Supplemental Indenture for Future Subsidiary
Guarantors.
Each Subsidiary which is required to become a Subsidiary Guarantor
pursuant to Section 4.18 shall, and the Company shall cause each such Subsidiary
to, promptly execute and deliver to the Trustee a supplemental indenture
substantially in the form of Exhibit F hereto pursuant to which such Subsidi-
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ary shall become a Subsidiary Guarantor under this Section 10 and shall
guarantee the obligations of the Company under the Notes and the Indenture.
Concurrently with the execution and delivery of such supplemental indenture, the
Company shall deliver to the Trustee an Opinion of Counsel to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Guarantee of such Subsidiary Guarantor
is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms.
The supplemental indenture shall be executed by the Subsidiary which
is required to become a Subsidiary Guarantor by an officer of such Subsidiary.
In addition, the Company, all existing Subsidiary Guarantors and the Trustee
shall execute such supplemental indenture.
Section 10.09. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each
Subsidiary Guarantor hereby agrees that a notation of such Guarantee
substantially in the form of Exhibit E hereto shall be placed on each Note
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Subsidiary Guarantor by the manual
or facsimile signature of an Officer of each Subsidiary Guarantor.
Each Subsidiary Guarantor hereby agrees that the Guarantee set forth
in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an Officer of a Subsidiary Guarantor whose signature is on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of each Subsidiary Guarantor.
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ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
Any notice or communication shall be given in writing and delivered
in person against written receipt, sent by facsimile, delivered by commercial
courier service or mailed by first-class mail, postage prepaid, or by a
recognized overnight courier, addressed as follows:
If to the Company or any Subsidiary Guarantor:
Global Health Sciences, Inc.
000 Xxxxxxxxxx Xxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Trustee:
Chase Manhattan Bank and Trust Company,
National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention:
Tel: 000-000-0000
Fax: 000-000-0000
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Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, any Subsidiary Guarantor or the Trustee by written
notice to the others may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed
to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication to a Noteholder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 11.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Subsidiary Guarantors, the Trustee, the Registrar and
anyone else shall have the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company or
such Subsidiary Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.05 below) 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
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(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 4.04) shall include:
(1) a statement that the Person 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 Person, it or he has
made such examination or investigation as is necessary to enable it or 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 Person,
such covenant or condition has been complied with.
Section 11.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, any Subsidiary Guarantor or any other obligor on the
Notes or by any Affiliate of any of them shall be disregarded, except that for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which the Trustee actually
knows are so owned shall be so disregarded. Notes so owned which have been
pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, any Subsidiary Guarantor or any
other obligor upon the Notes or any Affiliate of any of them.
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Section 11.07. Rules by Trustee (and Agents).
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 11.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 11.09. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.11. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company or any Subsidiary Guarantor under the Notes, the
Guarantees or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder by accepting a
Note waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Notes.
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Section 11.12. Successors.
All agreements of the Company and each Subsidiary Guarantor in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee, any Paying Agents and the Registrar in
this Indenture shall bind its successor.
Section 11.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.14. Table of Contents, Headings, etc.
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 to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.15. Separability.
Each provision of this Indenture shall be considered separable and
if for any reason any provision which is not essential to the effectuation of
the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed all as of the date and year first written above.
GLOBAL HEALTH SCIENCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
GLOBAL HEALTH SUB, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
D&F INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
RAVEN INDUSTRIES
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name:
Title:
DYNAMIC PRODUCTS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name:
Title:
WEST COAST SALES
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name:
Title:
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name:
Title: Vice President
EXHIBIT A
(FACE OF NOTE)
[FORM OF NOTE]
THESE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO (X) THE DATE WHICH IS TWO YEARS
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 NOTE (OR ANY
PREDECESSOR NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY ANY
SUBSEQUENT CHANGE IN APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"),
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THE NOTES), (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" WITHIN
THE MEANING OF SUBPARAGRAPH (a)(1), (a)(2), (a)(3) OR (a)(7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS PURCHASING NOTES WITH AN AGGREGATE PRINCIPAL AMOUNT,
PLUS ACCRUED AND UNPAID INTEREST, IF ANY, OF AT LEAST $250,000 AND THAT IS
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, 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, AND IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS NOTE
A-1
BE COMPLETED AND DELIVERED BY THE TRANSFEROR TO THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
A-2
CUSIP
Number $
GLOBAL HEALTH SCIENCES, INC.
11% Senior Note due 2008
Global Health Sciences, Inc., a California corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to ________________________ or registered assigns the principal
sum [specified in Schedule A hereto]* [of ________ Dollars]** on May 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing November 1,
1998
Record Dates: April 15 and October 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
----------
* Insert in Global Notes only.
** Insert in Physical Notes only.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
GLOBAL HEALTH SCIENCES, INC.
By:
---------------------------
By:
---------------------------
Certificate of Authentication:
This is one of the 11% Senior
Notes due 2008 referred to in
the within-mentioned Indenture
Dated:
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Authorized Officer
A-4
(REVERSE SIDE)
GLOBAL HEALTH SCIENCES, INC.
11% Senior Note due 2008
1. INTEREST.
Global Health Sciences, Inc., a California corporation (the
"Company"), promises to pay interest on the principal amount of this Note
semiannually on May 1 and November 1 of each year (each an "Interest Payment
Date"), commencing on November 1, 1998, at the rate of 11% per annum. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for, from the date of the original issuance of the Notes.
The Company shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate of
interest borne by the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in Paragraph
1 above (except defaulted interest) to the person who is the registered Holder
of this Note at the close of business on the April 15 or October 15 preceding
the Interest Payment Date (whether or not such day is a Business Day). The
Holder must surrender this Note to a Paying Agent to collect principal payments.
The Company will pay principal, premium, if any, and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts; provided, however, that the Company may pay principal,
premium, if any, and interest by check payable in such money. It may mail an
interest check to the Holder's registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, Chase Manhattan Bank and Trust Company, National
Association, a national banking association (the "Trustee"), will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to the Holders of the Notes. Neither the Company nor any of its
Subsidiaries or Affiliates may act as Paying Agent but may act as Registrar or
co-Registrar.
A-5
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of April
23, 1998 (the "Indenture") among the Company, the Subsidiary Guarantors and the
Trustee. The terms of this Note 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. Code Sections 77aaa-77bbbb) as in effect on the date of the Indenture. This
Note is subject to all such terms, and the Holder of this Note is referred to
the Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are general unsecured senior obligations of the Company
limited (except as otherwise provided in the Indenture) in aggregate principal
amount to $325,000,000 which may be issued under the Indenture; provided the
principal amount of the Notes issued on the Issue Date will not exceed
$225,000,000. The Indenture imposes certain restrictions on, among other things,
the incurrence of indebtedness, the incurrence of liens, the making of certain
investments, mergers and sale of assets, the payments of dividends on or the
repurchase of, capital stock of the Company and its Subsidiaries, certain other
restricted payments by the Company and its Subsidiaries, certain transactions
with, and investments in, its Affiliates, certain sale-leaseback transactions
and a provision regarding change-of-control transactions.
5. REDEMPTION.
The Company may redeem the Notes, in whole or in part, on or after
May 1, 2003 at the redemption prices set forth in Section 3.07(a) of the
Indenture, together, in each case, with accrued and unpaid interest to the
Redemption Date.
In addition, at any time, or from time to time, on or prior to May
1, 2001, the Company may, at its option, use the Net Proceeds of one or more
Public Equity Offerings to redeem up to 35% of the principal amount of the Notes
at a redemption price set forth in Section 3.07(b) of the Indenture, provided,
however, that at least 65% of the principal amount of Notes originally issued on
the Issue Date remains outstanding immediately after any such redemption.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
days but not more than 60 days prior to the Redemption Date to each Holder of
Notes to be redeemed at its
A-6
registered address as it shall appear on the register of the Notes maintained by
the Registrar. On and after any Redemption Date, interest will cease to accrue
on the Notes or portions thereof called for redemption unless the Company shall
fail to redeem any such Note.
7. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be
used, subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set forth in
the Indenture. The Company is also required to make an offer to purchase Notes
upon occurrence of a Change of Control in accordance with procedures set forth
in the Indenture.
8. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Company and
Citicorp Securities, Inc., Citibank Canada Securities Limited and Citibank
International plc, as initial purchasers of the Notes, the Company and the
Subsidiary Guarantors will be obligated to consummate an exchange offer pursuant
to which the Holder of this Note shall have the right to exchange this Note for
Notes of a separate series issued under the Indenture (or a trust indenture
substantially identical to the Indenture in accordance with the terms of the
Registration Rights Agreement) which have been registered under the Securities
Act, in like principal amount and having substantially identical terms as the
Notes. The Holders shall be entitled to receive certain Additional Amounts
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.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and 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 any Note
selected for redemption or register the transfer of or exchange any Note for a
period of 15 days before a selection of Notes to be redeemed or any Note after
it is called for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
A-7
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any
Note remains unclaimed for two years, the Trustee or Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to money
must look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Company, the Subsidiary Guarantors and
the Trustee with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding and any existing Default or compliance with
any provision may be waived in a particular instance with the consent of the
Holders of a majority in principal amount of the Notes then outstanding. Without
the consent of Holders, the parties thereto may amend the Indenture or the Notes
or supplement the Indenture for certain specified purposes including providing
for uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not
adversely affect the rights of any Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation (except as provided in the Indenture) will be released
from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.01(g) or (h) of
the Indenture with respect to the Company) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding, may declare to be immediately
due and payable the entire principal amount of all the Notes then outstanding
plus accrued but unpaid interest to
A-8
the date of acceleration, subject to Section 6.02 of the Indenture; provided,
however, that after such acceleration but before judgment or decree based on
such acceleration is obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the outstanding Notes may, under certain
circumstances, rescind and annul such acceleration and its consequences if all
existing Events of Default, other than the nonpayment of principal, premium or
interest that has become due solely because of the acceleration, have been cured
or waived and if the rescission would not conflict with any judgment or decree.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default specified in Section 6.01(g) or
(h) of the Indenture with respect to the Company occurs, such principal amount,
together with premium, if any, and interest with respect to all of the Notes,
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Notes.
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company, and may otherwise deal with the Company, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company or the
Subsidiary Guarantors under the Notes, the Guarantees or the Indenture or for
any claim based on, in respect or by reason of, such obligations or their
creation. The Holder of this Note by accepting this Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
18. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a
Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN
A-9
(joint tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (Uniform Gifts to Minors Act).
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Securities Identification Procedures, the Company has caused CUSIP Numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
20. GOVERNING LAW.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
GLOBAL HEALTH SCIENCES, INC., 000 Xxxxxxxxxx Xxx, Xxxxxx, XX 00000, Attention:
Xxxxxxx X. Xxxxxxx.
A-10
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.15 of the Indenture shall have been satisfied.
-2-
Date: Your Signature:
---------------- -----------------
--------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
--------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------- ----------------------------
NOTICE: To be executed by
an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.08, or Section 4.14 of the Indenture, check
the appropriate box:
|_| Section 4.08 |_| Section 4.14
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.08 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$_________________ ($1,000 or an integral multiple thereof)
Date:
------------
Your Signature:
---------------------
(Sign exactly as your name appears on the
face of this Note)
------------------------
Signature Guaranteed
SCHEDULE A*
The initial principal amount of Notes evidenced by this
Global Note is $_________.
Changes in Principal Amount of this Global Note:
-------------------------------------------------------------------------------
Principal Amount
by which Global Principal Amount
Note is being of Global Note
Increased or after Increase or Notation Made
Date Decreased Decrease by
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
----------
* Insert in Global Notes only.
EXHIBIT B
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") 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 IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR 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.
B-1
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
[Address of Registrar]
Re: Global Health Sciences, Inc.
(the "Company") 11%
Senior Notes due 2008
(the "Notes")
----------------------------
Dear Sirs:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of April 23, 1998 relating to the Notes and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the
Notes except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell any Notes within two years after the original issuance
of the Notes, we will do so only (A) to the Company or any subsidiary
thereof, (B) inside the United States in compliance with Rule 144A under
the Securities Act, to a "qualified institutional buyer" (as defined in
Rule 144A), (C) inside the United States to an institutional "accredited
investor" (as defined below) that is purchasing Notes with an aggregate
principal amount, plus accrued and unpaid interest, if any, of at least
$250,000 and that, prior to such transfer, furnishes to you a signed
letter substantially in the form of this letter, (D) outside the United
States to a foreign person in compliance with Rule 904 of Regulation S
under the Securities Act, (E) pursuant to the exemption
C-1
from registration provided by Rule 144 under the Securities Act (if
available), or (F) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any person
purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------------
Authorized Signature
C-2
EXHIBIT D
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulation S
___________, ____
[Address of Registrar]
Re: Global Health Sciences, Inc.
(the "Company") 11%
Senior Notes due 2008
(the "Notes")
----------------------------
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably
require to
D-1
confirm that the proposed sale complies with the foregoing restrictions
and
(6) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------
Authorized Signature
D-2
EXHIBIT E
SUBORDINATED GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, on a subordinated basis, as principal obligor and not only as a
surety, to the Holder of this Note the cash payments in U.S. dollars of
principal of, premium, if any, and interest on this Note (and including
Additional Amounts payable thereon) in the amounts and at the times when due and
interest on the overdue principal of, premium, if any, and interest, if any, on
this Note, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture (as defined below) or the Notes, to the Holder
of this Note and the Trustee, all in accordance with and subject to the terms
and limitations of this Note, Article Ten of the Indenture and this Guarantee.
This Guarantee will become effective in accordance with Article Ten of the
Indenture and its terms shall be evidenced therein. The validity and
enforceability of any Guarantee shall not be affected by the fact that it is not
affixed to any particular Note. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Indenture dated as of April 23,
1998, among Global Health Sciences, Inc., a California corporation, as issuer
(the "Company"), each of the Subsidiary Guarantors named therein and Chase
Manhattan Bank and Trust Company, National Association, as trustee (the
"Trustee"), as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article Ten of the Indenture and such obligations are subordinated to the
prior payment in full in cash of all Guarantor Senior Debt. Reference is hereby
made to the Indenture for the precise terms of the Guarantee and all of the
other provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. Each Subsidiary Guarantor hereby agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
E-1
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused its
Guarantee to be duly executed.
SUBSIDIARY GUARANTORS:
GLOBAL HEALTH SUB, INC.
D&F INDUSTRIES, INC.
RAVEN INDUSTRIES
DYNAMIC PRODUCTS, INC.
WEST COAST SALES
By:
--------------------------
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
_______________, among [ ] (the "NEW SUBSIDIARY GUARANTOR"), a subsidiary of
Global Health Sciences, Inc. (or its successor), a California corporation (the
"Company"), the COMPANY, the SUBSIDIARY GUARANTORS (the "Existing Subsidiary
Guarantors") under the Indenture referred to below, and Chase Manhattan Bank and
Trust Company, National Association, a national banking association, as trustee
under the Indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture (as such may be amended from time to time, the
"Indenture"), dated as of April 23, 1998, providing for the issuance of an
aggregate principal amount of up to $325,000,000 of 11% Senior Notes due 2008
(the "Notes");
WHEREAS Section 4.18 of the Indenture provides that under certain
circumstances the Company is required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally guarantee all of the
Company's obligations under the Notes and the Indenture pursuant to a Guarantee
on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 8.01 of the Indenture, the Trustee, the
Company and Existing Subsidiary Guarantors are authorized to execute and deliver
this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Company, the Existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Notes as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the
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context otherwise requires: (i) the terms and expressions used herein shall have
the same meanings as corresponding terms and expressions used in the Indenture;
and (ii) the words "herein," "hereof" and "hereby" and other words of similar
import used in this Supplemental Indenture refer to this Supplemental Indenture
as a whole and not to any particular section hereof.
2. Agreement to Guarantee. The New Subsidiary Guarantor hereby
agrees, jointly and severally with all other Subsidiary Guarantors, to guarantee
the Company's obligations under the Notes and the Indenture on the terms and
subject to the conditions set forth in Article 10 of the Indenture (including,
without limitation, the subordination provisions thereof) and to be bound by all
other applicable provisions of the Indenture. From and after the date hereof,
the New Subsidiary Guarantor shall be a Subsidiary Guarantor for all purposes
under the Indenture and the Notes.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE 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.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR]
By:
---------------------
Name:
Title:
GLOBAL HEALTH SCIENCES, INC.
By:
---------------------
Name:
Title:
EXISTING SUBSIDIARY GUARANTORS:
By:
---------------------
Name:
Title:
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By:
---------------------
Name:
Title:
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