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EXHIBIT 99.1
EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
March 30, 2001 among Xxxxx Holdings plc, a Northern Ireland Company ("Xxxxx"),
Xxxxxx Xxxxxxxx, Inc., a Delaware corporation (the "Issuer"), Xxxxxx Xxxxxxxx
Public Limited Company, a public limited company organized under the laws of the
Republic of Ireland ("Parent"), and The Bank of New York, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuer and Parent have heretofore executed and delivered
to the Trustee an indenture (the "Indenture"), dated as of February 15, 2000
providing for the issuance of an aggregate principal amount of $200,000,000 of
12 5/8% Senior Notes due 2008 (the "Notes");
WHEREAS, Section 9.01 of the Indenture provides that Parent, Issuer,
Subsidiary Guarantors and the Trustee may amend the Indenture or the Notes
without notice to or consent of any Securityholders for the purpose of providing
an additional guaranty; and
WHEREAS, Xxxxx has determined to provide a guaranty of payment of
principal and interest with respect to the Notes; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
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, Xxxxx,
Parent, Issuer and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. MODIFICATION OF DEFINED TERMS. Section 1.01 is hereby amended as
follows:
a. The definition of the term "Guarantor" is hereby amended
and restated in its entirety as follows:
"Guarantor" means Xxxxxx Xxxxxxxx Public Limited Company, a
public limited company organized under the laws of the
Republic of Ireland, Xxxxx Holdings PLC, a public limited
company organized under the laws of Northern Ireland, and
their respective successors and any of their respective
current or future domestic subsidiaries that enter into a
Guaranty Agreement.
b. The definition for the term "Xxxxx" is hereby added to
read as follows:
"Xxxxx" means Xxxxx Holdings PLC, a public limited company
incorporated under the laws of Northern Ireland.
3. AGREEMENT TO GUARANTEE. Article X of the Indenture is hereby
amended and restated in its entirety as follows:
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ARTICLE 10
Guaranty
SECTION 10.01. Guaranty. Parent and Xxxxx jointly and
severally hereby absolutely, unconditionally and irrevocably guarantee the
Securities and obligations of Issuer hereunder and thereunder on a senior,
unsecured basis, and guarantee to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, that: (a)
the principal of (and premium, if any) and interest on the Security shall be
paid in full when due, whether at Stated Maturity, by acceleration or otherwise
(including, without limitation, the amount that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Law),
together with interest on the overdue principal, if any, and interest on any
overdue interest, to the extent lawful, and all other obligations of Issuer to
the Holders or the Trustee hereunder or thereunder shall be 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 Security or of any such
other obligations, the same shall be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise, subject, however, in the case of clauses
(a) and (b) above, to the limitations set forth in Section 10.04 hereof.
Each of Parent and Xxxxx hereby agrees that their respective
obligations hereunder shall be unconditional irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of any
judgment against Issuer, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
Parent and Xxxxx hereby waive (to the extent permitted by law)
the benefits of diligence, presentment, demand for payment, filing of claims
with a court in the event of insolvency or bankruptcy of Issuer, any right to
require a proceeding first against Issuer or any other Person, protest, notice
and all demands whatsoever and covenants that the Guaranty of Parent and Xxxxx
shall not be discharged as to any Security except by complete performance of the
obligations contained in such Security and such Guaranty. Each of Parent and
Xxxxx hereby agrees that, in the event of a default in payment of principal (or
premium, if any) or interest on such Security whether at its Stated Maturity, by
acceleration, purchase or otherwise, legal proceedings must be instituted by the
Trustee on behalf of, or by, the Holder of such Security, subject to the terms
and conditions set forth in this Indenture, directly against Parent and Xxxxx
jointly and severally to enforce their Guaranty without first proceeding against
Issuer. Parent and Xxxxx agree that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, Parent and Xxxxx shall be jointly and severally responsible for
and shall pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
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If any Holder or the Trustee is required by any court or
otherwise to return to Issuer, Parent or Xxxxx, or any custodian,
trustee, liquidator or other similar official acting in relation to any
of Issuer, Parent or Xxxxx, any amount paid by any of them to the
Trustee or such Holder, the Guarantee of Parent and Xxxxx, to the
extent theretofore discharged, shall be reinstated in full force and
effect. Parent and Xxxxx further agree that, as between Parent and
Xxxxx, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of the
Guaranty of Parent and Xxxxx, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any acceleration
of such Obligations as provided in Article 6 hereof, such Obligations
(whether or not due and payable) shall forthwith become due and payable
by Parent and Xxxxx for the purpose of the Guaranty of Parent and
Xxxxx.
SECTION 10.02. Guaranty of Each Subsidiary Guarantor. Any
domestic Subsidiary Guarantor from time to time party hereto, shall
jointly and severally, irrevocably and fully and unconditionally
Guarantee, on a senior, unsecured basis, the punctual payment when due,
whether at Stated Maturity, by acceleration or otherwise, of all
Obligations of Issuer under this Indenture and the Securities.
Any term or provision of this Indenture notwithstanding, each
Subsidiary Guaranty shall not exceed the maximum amount that can be
Guaranteed by the applicable Subsidiary Guarantor without rendering the
Subsidiary Guaranty, as it relates to such Subsidiary Guarantor,
voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors
generally.
SECTION 10.03. Severability. In case any provision of Parent's
or Galen's Guaranty or any other Guaranty shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the
remaining provisions thereof shall not in any way be affected or
impaired thereby.
SECTION 10.04. Limitation of Guarantor's Liability. Parent and
Xxxxx and by their acceptance hereof each Holder confirms that it is
the intention of all such parties that the Guarantee by Parent and
Xxxxx pursuant to its Guaranty not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law or the provisions of its local law relating to
fraudulent transfer or conveyance. To effectuate the foregoing
intention, the Holders and Parent and Xxxxx hereby irrevocably agree
that the obligations of Parent and Xxxxx under their Guaranty shall be
limited to the maximum amount that will not, after giving effect to all
other contingent and fixed liabilities of Parent and Xxxxx result in
the obligations of Holdings under its Guaranty constituting such
fraudulent transfer or conveyance.
SECTION 10.05. Subrogation. Parent and Xxxxx shall be
collectively subrogated to all rights of Holders against Issuer in
respect of any amounts paid by Parent and Xxxxx pursuant to the
provisions of Section 10.01; provided, however, that, if an Event of
Default has occurred and is continuing, neither Parent nor Xxxxx shall
be entitled to enforce or receive any payments arising out of, or based
upon, such right of
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subrogation until all amounts then due and payable by Issuer under this
Indenture or the Securities shall have been paid in full.
SECTION 10.06. Reinstatement. Parent and Xxxxx hereby agree
that the Guaranty provided for in Section 10.01 shall continue to be
effective or be reinstated, as the case may be, if at any time,
payment, or any part thereof, of any obligations or interest thereon is
rescinded or must otherwise be restored by a Holder to Issuer upon the
bankruptcy or insolvency of Issuer, Parent or Xxxxx.
SECTION 10.07. Release of Holdings. Concurrently with the
discharge, defeasance or the covenant defeasance of the Securities
under Section 8.01, Parent and Xxxxx shall be released from all of
their Obligations under the Guaranty under this Article 10.
SECTION 10.08. Execution and Delivery of Guaranty. To evidence
its Guaranty set forth in Section 10.01, each of Parent, Xxxxx and any
Subsidiary Guarantor hereby agrees that a notation of such Guaranty
substantially in the form included as Exhibit B shall be endorsed by a
duly authorized officer of such entity on each Security authenticated
and delivered by the Trustee and that this Indenture shall be executed
on behalf of each such entity by one of its duly authorized officers.
Each of Parent, Xxxxx and any Subsidiary Guarantor hereby
agrees that its Guaranty set forth in Section 10.01 and 10.02,
respectively, shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guaranty.
If the duly authorized officers of Parent, Xxxxx and any
Subsidiary Guarantor whose signatures appear on this Indenture or on
their respective Guaranty no longer hold their offices at the time the
Trustee authenticates the Security on which a Guaranty is endorsed, the
Guaranty shall be valid nevertheless.
SECTION 10.09. Benefits Acknowledged. Parent and Xxxxx
acknowledge that they will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that
their Guarantee and waiver pursuant to their Guaranty are knowingly
made in contemplation of such benefits.
4. NO RECOURSE AGAINST OTHERS. Section 11.10 of the Indenture is hereby
amended and restated as follows:
A director, officer, employee or stockholder, as such, of Parent,
Xxxxx or Issuer shall not have any liability for any obligations of
Parent, Xxxxx or Issuer under the Securities, any Guaranty or this
Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver
and release shall be part of the consideration for the issue of the
Securities and any Guarantee.
5. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
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OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
6. COUNTERPARTS. The parties to this Supplemental Indenture 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. One signed
copy is enough to prove this Supplemental Indenture.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
8. EFFECT ON XXXXX. Except as set forth herein, Xxxxx shall not, by
virtue of its entering into this Supplemental Indenture, become subject to the
provisions of the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: March 30, 2001
EXECUTED AS A DEED BY )
XXXXX HOLDINGS PLC ) /s/ X. X. Xxxxxx
Acting by X. X. Xxxxxxx and ) (director)
Xxxx Xxxxxxxxx ) /s/ Xxxx Xxxxxxxxx
(director/secretary)
XXXXXX XXXXXXXX, INC.
By: /s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: Chief Financial Officer
EXECUTED AS A DEED BY )
XXXXXX XXXXXXXX PLC ) /s/ X. X. Xxxxxx
Acting by X. X. Xxxxxxx and ) (director)
Xxxx Xxxxxxxxx ) /s/ Xxxx Xxxxxxxxx
(director/secretary)
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
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EXHIBIT B
GUARANTY
For value received, Xxxxx Holdings plc ("Xxxxx") and Xxxxxx
Xxxxxxxx PLC ("Parent"), have jointly and severally unconditionally guaranteed,
to the extent set forth in the Indenture and subject to the provisions in the
Indenture dated as of February 15, 2000 among Xxxxxx Xxxxxxxx, Inc. ("the
Issuer"), Warner PLC, and The Bank of New York, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of March 23, 2001
among the Issuer, Parent, Xxxxx and the Trustee (as so supplemented, the
"Indenture") (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Securities (as defined in the Indenture) when due,
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, and, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of Issuer to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Securities or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether as stated maturity, by acceleration or
otherwise. The obligations of Xxxxx and Parent to the Holders of Securities and
to the Trustee pursuant to this Guaranty and the Indenture are expressly set
forth in Article 10 of the Indenture for the precise terms of this Guaranty.
Each Holder of a Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee, on behalf of
such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Guaranty shall cease to be so
subordinated and subject in right of payment upon any defeasance of this
Security in accordance with the provisions of the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this
guaranty to be duly executed and attested, all on March 30, 2001.
Dated: March 30, 2001
EXECUTED AS A DEED BY )
XXXXX HOLDINGS PLC ) /s/ X. X. Xxxxxx
Acting by X. X. Xxxxxxx and ) (director)
Xxxx Xxxxxxxxx ) /s/ Xxxx Xxxxxxxxx
(director/secretary)
EXECUTED AS A DEED BY )
XXXXXX XXXXXXXX PLC ) /s/ X. X. Xxxxxx
Acting by X. X. Xxxxxxx and ) (director)
Xxxx Xxxxxxxxx ) /s/ Xxxx Xxxxxxxxx
(director/secretary)
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