Exhibit 4.1
XXXXX & MINOR, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors to
SUNTRUST BANK, as Trustee
SENIOR SUBORDINATED INDENTURE
Dated as of July 2, 2001
Providing for Issuance of
Senior Subordinated Debt Securities in Series
Reconciliation and tie between Senior Subordinated Indenture, dated as of July
2, 2001 (the "Indenture") and the Trust Indenture Act of 1939, as amended.
---------
Trust Indenture Act Indenture
of 0000 Xxxxxxx Xxxxxxx
--------------- -------
310(a)(1)...................................... 6.9
(a)(2) 6.9
(a)(3) TIA
(a)(4)Not Applicable
(a)(5) TIA
(b)6.8; 6.10; TIA
311(a) TIA
(b) TIA
312(a) 10.1
(b) TIA
(c) TIA
313(a)10.3; TIA
(b) TIA
(c) TIA
(d) TIA
314(a)10.4; TIA
(b)Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3)Not Applicable
(d)Not Applicable
(e) TIA
(f) TIA
315(a) 6.1
(b) 6.2
(c) 6.1
(d)(1) TIA
(d)(2) TIA
(d)(3) TIA
(e) TIA
316(a)(last sentence).......................... 1.1
(a)(1)(A)5.2; 5.8
(a)(l)(B)5.7
(b)5.9; 5.10
(c) TIA
i
317(a)(1)...................................... 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.12
(b) TIA
(c)1.12; TIA
This reconciliation and tie section does not constitute part of the Indenture.
ii
Table of Contents
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Page
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ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................................................ 1
Section 1.1 Definitions............................................................................. 1
Section 1.2 Compliance Certificates and Opinions.................................................... 1
Section 1.3 Form of Documents Delivered to Trustee.................................................. 1
Section 1.4 Acts of Holders......................................................................... 1
Section 1.5 Notices, Etc., to Trustee, Company and Guarantors....................................... 1
Section 1.6 Notice to Holders; Waiver............................................................... 1
Section 1.7 Headings and Table of Contents.......................................................... 1
Section 1.8 Successor and Assigns................................................................... 1
Section 1.9 Separability............................................................................ 1
Section 1.10 Benefits of Indenture................................................................... 1
Section 1.11 Incorporators, Officers and Directors of the Company Exempt from Individual Liability... 1
Section 1.12 Governing Law; Conflict with Trust Indenture Act........................................ 1
Section 1.13 Legal Holidays.......................................................................... 1
Section 1.14 Moneys of Different Currencies to Be Segregated......................................... 1
Section 1.15 Independence of Agreements.............................................................. 1
Section 1.16 Counterparts............................................................................ 1
ARTICLE 2.
SECURITY AND SENIOR SUBORDINATED GUARANTEE FORMS................................................................... 1
Section 2.1 Forms Generally......................................................................... 1
Section 2.2 Form of Trustee's Certificate of Authentication......................................... 1
Section 2.3 Form of Senior Subordinated Guarantee................................................... 1
Section 2.4 Global Securities....................................................................... 1
Section 2.5 Form of Legend for Global Securities.................................................... 1
ARTICLE 3.
THE SECURITIES..................................................................................................... 1
Section 3.1 Amount Unlimited; Issuable in Series.................................................... 1
Section 3.2 Denominations........................................................................... 1
Section 3.3 Execution, Authentication, Delivery and Dating.......................................... 1
Section 3.4 Temporary Securities.................................................................... 1
Section 3.5 Registration, Transfer and Exchange..................................................... 1
Section 3.6 Replacement Securities.................................................................. 1
Section 3.7 Payment of Interest; Interest Rights Preserved.......................................... 1
i
Section 3.8 Persons Deemed Owners................................................................... 1
Section 3.9 Cancellation............................................................................ 1
Section 3.10 Computation of Interest................................................................. 1
Section 3.11 CUSIP Numbers........................................................................... 1
Section 3.12 Currency and Manner of Payment in Respect of Securities................................. 1
ARTICLE 4.
SATISFACTION AND DISCHARGE......................................................................................... 1
Section 4.1 Termination of Company's Obligations Under the Indenture................................ 1
Section 4.2 Application of Trust Funds.............................................................. 1
ARTICLE 5.
DEFAULTS AND REMEDIES.............................................................................................. 1
Section 5.1 Events of Default....................................................................... 1
Section 5.2 Acceleration; Rescission and Annulment.................................................. 1
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee......................... 1
Section 5.4 Trustee May File Proofs of Claim........................................................ 1
Section 5.5 Trustee May Enforce Claims Without Possession of Securities............................. 1
Section 5.6 Delay or Omission Not Waiver............................................................ 1
Section 5.7 Waiver of Past Defaults................................................................. 1
Section 5.8 Control by Majority..................................................................... 1
Section 5.9 Limitation on Suits by Holders.......................................................... 1
Section 5.10 Rights of Holders to Receive Payment.................................................... 1
Section 5.11 Application of Money Collected.......................................................... 1
Section 5.12 Restoration of Rights and Remedies...................................................... 1
Section 5.13 Rights and Remedies Cumulative.......................................................... 1
Section 5.14 Undertaking for Costs................................................................... 1
Section 5.15 Waiver of Stay, Extension or Usury Laws................................................. 1
Section 5.16 Conduct of Trustee...................................................................... 1
ARTICLE 6.
THE TRUSTEE........................................................................................................ 1
Section 6.1 Certain Duties and Responsibilities..................................................... 1
Section 6.2 Notice of Defaults...................................................................... 1
Section 6.3 Certain Rights of Trustee............................................................... 1
Section 6.4 Not Responsible for Recitals or Issuance of Securities.................................. 1
Section 6.5 May Hold Securities..................................................................... 1
Section 6.6 Money Held in Trust..................................................................... 1
Section 6.7 Compensation and Reimbursement.......................................................... 1
Section 6.8 Conflicting Interests................................................................... 1
Section 6.9 Corporate Trustee Required; Eligibility................................................. 1
ii
Section 6.10 Resignation and Removal; Appointment of Successor....................................... 1
Section 6.11 Acceptance of Appointment by Successor.................................................. 1
Section 6.12 Merger, Conversion, Consolidation or Succession to Business............................. 1
Section 6.13 Preferential Collection of Claims Against Company....................................... 1
Section 6.14 Appointment of Authenticating Agent..................................................... 1
ARTICLE 7.
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY............................................................. 1
Section 7.1 Consolidation, Merger or Sale of Assets Permitted....................................... 1
Section 7.2 Successor Substituted................................................................... 1
ARTICLE 8.
SUPPLEMENTAL INDENTURES............................................................................................ 1
Section 8.1 Supplemental Indentures Without Consent of Holders...................................... 1
Section 8.2 Supplemental Indentures with Consent of Holders......................................... 1
Section 8.3 Compliance with Trust Indenture Act..................................................... 1
Section 8.4 Execution of Supplemental Indentures.................................................... 1
Section 8.5 Effect of Supplemental Indentures....................................................... 1
Section 8.6 Reference in Securities to Supplemental Indentures...................................... 1
Section 8.7 Notice of Supplemental Indentures....................................................... 1
ARTICLE 9.
AGREEMENTS......................................................................................................... 1
Section 9.1 Payment of Principal, Premium, if Any, and Interest..................................... 1
Section 9.2 Maintenance of Office or Agency......................................................... 1
Section 9.3 Money for Securities Payments to Be Held in Trust; Unclaimed Money...................... 1
Section 9.4 Corporate Existence..................................................................... 1
Section 9.5 Annual Review Certificate............................................................... 1
Section 9.6 Maintenance of Properties............................................................... 1
Section 9.7 Payments of Taxes and Other Claims...................................................... 1
Section 9.8 Waiver of Certain Agreements............................................................ 1
ARTICLE 10.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................................................. 1
Section 10.1 Company to Furnish Trustee Names and Addresses of Holders............................... 1
Section 10.2 Preservation of Information, Communications to Holders.................................. 1
Section 10.3 Reports by Trustee...................................................................... 1
Section 10.4 Reports by the Company and the Guarantors............................................... 1
iii
ARTICLE 11.
REDEMPTION......................................................................................................... 1
Section 11.1 Applicability of Article................................................................ 1
Section 11.2 Election to Redeem; Notice to Trustee................................................... 1
Section 11.3 Selection of Securities to Be Redeemed.................................................. 1
Section 11.4 Notice of Redemption.................................................................... 1
Section 11.5 Deposit of Redemption Price............................................................. 1
Section 11.6 Securities Payable on Redemption Date................................................... 1
Section 11.7 Securities Redeemed in Part............................................................. 1
ARTICLE 12.
SINKING FUNDS...................................................................................................... 1
Section 12.1 Applicability of Article................................................................ 1
Section 12.2 Satisfaction of Sinking Fund Payments with Securities................................... 1
Section 12.3 Redemption of Securities for Sinking Fund............................................... 1
ARTICLE 13.
MEETINGS OF HOLDERS OF SECURITIES.................................................................................. 1
Section 13.1 Purposes for Which Meetings May Be Called............................................... 1
Section 13.2 Call, Notice and Place of Meetings...................................................... 1
Section 13.3 Persons Entitled to Vote at Meetings.................................................... 1
Section 13.4 Quorum; Action.......................................................................... 1
Section 13.5 Determination of Voting Rights; Conduct and Adjournment of Meetings..................... 1
Section 13.6 Counting Votes and Recording Action of Meetings......................................... 1
ARTICLE 14.
CONVERSION OR EXCHANGE OF SECURITIES............................................................................... 1
Section 14.1 Applicability of Article................................................................ 1
Section 14.2 Exercise of Conversion or Exchange Privilege............................................ 1
Section 14.3 No Fractional Equity Interests.......................................................... 1
Section 14.4 Adjustment of Conversion or Exchange Price; Consolidation or Merger..................... 1
Section 14.5 Notice of Certain Corporate Actions..................................................... 1
Section 14.6 Reservation of Equity Interests......................................................... 1
Section 14.7 Payment of Certain Taxes Upon Conversion or Exchange.................................... 1
Section 14.8 Duties of Trustee Regarding Conversion or Exchange...................................... 1
Section 14.9 Repayment of Certain Funds Upon Conversion or Exchange.................................. 1
iv
ARTICLE 15.
SENIOR SUBORDINATED GUARANTEE...................................................................................... 1
Section 15.1 Unconditional Guarantee................................................................. 1
Section 15.2 Severability............................................................................ 1
Section 15.3 Release of a Guarantor.................................................................. 1
Section 15.4 Limitation of Guarantor's Liability..................................................... 1
Section 15.5 Contribution............................................................................ 1
Section 15.6 Execution of Guarantee.................................................................. 1
Section 15.7 Additional Guarantors................................................................... 1
Section 15.8 Subordination of Subrogation and Other Rights........................................... 1
Section 15.9 Subordination of Guarantee.............................................................. 1
ARTICLE 16.
JURISDICTION AND CONSENT TO SERVICE OF PROCESS..................................................................... 1
Section 16.1 Jurisdiction and Consent to Service of Process.......................................... 1
ARTICLE 17.
SUBORDINATION OF SECURITIES........................................................................................ 1
Section 17.1 Securities Subordinated to Senior Indebtedness.......................................... 1
Section 17.2 No Payment on Securities in Certain Circumstances....................................... 1
Section 17.3 Payment Over of Proceeds upon Dissolution, etc.......................................... 1
Section 17.4 Subrogation............................................................................. 1
Section 17.5 Obligations of Company Unconditional.................................................... 1
Section 17.6 Notice to Trustee....................................................................... 1
Section 17.7 Reliance on Judicial Order or Certificate of Liquidating Agent.......................... 1
Section 17.8 Trustee's Relation to Senior Indebtedness............................................... 1
Section 17.9 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of
Senior Indebtedness................................................................... 1
Section 17.10 Holders Authorize Trustee To Effectuate Subordination of Securities..................... 1
Section 17.11 This Article Not To Prevent Events of Default........................................... 1
Section 17.12 Trustee's Compensation Not Prejudiced................................................... 1
Section 17.13 No Waiver of Subordination Provisions................................................... 1
Section 17.14 Subordination Provisions Not Applicable to Money Held in Trust for Holders; Payments
May Be Paid Prior to Dissolution...................................................... 1
Section 17.15 Acceleration of Securities.............................................................. 1
ARTICLE 18.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE........................................................................... 1
v
Section 18.1 Option to Effect Legal Defeasance or Covenant Defeasance................................ 1
Section 18.2 Legal Defeasance and Discharge.......................................................... 1
Section 18.3 Covenant Defeasance..................................................................... 1
Section 18.4 Conditions of Legal or Covenant Defeasance.............................................. 1
Section 18.5 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions............................................................................ 1
Section 18.6 Repayment to Company.................................................................... 1
Section 18.7 Reinstatement........................................................................... 1
vi
SENIOR SUBORDINATED INDENTURE (the "Indenture"), dated as of July 2,
---------
2001, among XXXXX & MINOR, INC., a corporation duly organized and existing under
the laws of the Commonwealth of Virginia (the "Company"), having its principal
-------
office at 0000 Xxx Xxxx, Xxxx Xxxxx, Xxxxxxxx 00000, each of the GUARANTORS (as
hereinafter defined) and SUNTRUST BANK, a banking corporation organized under
the laws of the State of Georgia, as Trustee (the "Trustee").
-------
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its secured or
unsecured subordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
----------
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles as in effect in the United States of America from time to time;
provided that when two or more principles are so generally accepted, it
--------
shall mean that set of principles consistent with those in use by the
Company; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with any specified Person. For 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
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
-----
"Applicable Procedures" means, with respect to any transfer or
---------------------
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any authenticating agent appointed by the
--------------------
Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in
--------------------
the official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
--------------
state or foreign law for the relief of debtors.
"Bearer Security" means any Security issued hereunder which is payable
---------------
to bearer.
"Board of Directors" means, with respect to the Company or any
------------------
Guarantor, either the board of directors of the Company or of such Guarantor, as
the case may be, or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors of the
Company.
"Board Resolution" of the Company or any Guarantor means a copy of a
----------------
resolution certified by the Secretary or an Assistant Secretary of the Company
or such Guarantor, as the case may be, to have been duly adopted by its Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee. Except as otherwise expressly provided or unless
the context otherwise requires, each reference herein to a "Board Resolution"
shall mean a Board Resolution of the Company.
"Business Day", when used with respect to any Place of Payment or any
------------
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of any Person means the obligations to pay
------------------------
rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which are
required to be classified and accounted for as a capital lease or liability on
the face of a balance sheet of such Person in accordance with GAAP. The amount
of such obligations shall be the capitalized amount thereof in accordance
2
with GAAP and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
-------------
participations or other equivalents (however designated) of corporate stock of
such Person (including any Preferred Stock outstanding on the Issue Date);
provided that the Trust Preferred Securities shall not be considered Capital
--------
Stock of the Company.
"Commission" means the Securities and Exchange Commission, as from
----------
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
------------
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the Company in the first paragraph
-------
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
------------- ---------------
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer, a Vice President, the
Treasurer or the Secretary of the Company.
"consent," "waive" and "rescind", when used with respect to the
------- ----- -------
consent, waiver or rescission of or by the Holders of a specified percentage in
aggregate principal amount of Securities of any series, shall mean any of (i) a
favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in Richmond,
----------------------
Virginia at which at any particular time its corporate trust business shall be
administered, which office at the
3
date hereof is located at 000 Xxxx Xxxx Xxxxxx, 00/xx/ Xxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administration.
"corporation" shall mean a corporation, association, joint-stock
-----------
company or business trust.
"currency unit" for all purposes of this Indenture shall include any
-------------
composite currency, including, without limitation, ECU.
"Default" means, with respect to securities of any series, any event
-------
that is, or after notice or lapse of time, or both, would become, an Event of
Default with respect to Securities of such Series.
"Depositary", when used with respect to any global Securities, means
----------
the Person designated as Depositary by the Company pursuant to Section 3.1(b)
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Designated Senior Indebtedness" means (i) so long as the Revolving
------------------------------
Credit Facility is outstanding, the Senior Indebtedness incurred under the
Revolving Credit Facility and (ii) thereafter, any other Senior Indebtedness
which has at the time of initial issuance and aggregate outstanding principal
amount in excess of $25.0 million which has been designated as "Designated
Senior Indebtedness" by the Board of Directors of the Company at the time of
initial issuance in a resolution delivered to the Trustee.
"Disqualified Stock" of any Person means any Capital Stock of such
------------------
Person 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 redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Securities.
"Dollar" means the currency of the United States that at the time of
------
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
---
time to time by the Council of the European Communities.
"Equity Interests" means Capital Stock and all warrants, options or
----------------
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated by the Commission thereunder.
"Exchange Rate Certificate" means a certificate, signed by a
-------------------------
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal of, premium, if any, and interest, if any (on an
4
aggregate basis and on the basis of a Security having the lowest denomination
principal amount in the relevant currency or currency unit), that would be
payable with respect to a Security of the applicable series on the basis of such
Market Exchange Rate or the applicable bid quotation.
"Foreign Currency" means any currency issued by the government of one
----------------
or more countries other than the United States or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, consistently
----
applied, as in effect on the Issue Date in the United States of America, as set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession.
"Global Security" shall have the meaning set forth in Section 2.3.
---------------
"guarantee" by any Person means any obligation, contingent or
---------
otherwise, of such Person guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and
---------------
including, without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness, or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
(and "guaranteed," "guaranteeing" and "guarantor" shall have meanings
correlative to the foregoing); provided, however, that the guarantee by any
-------- -------
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Guarantee" means the guarantee of the Securities by each Guarantor
---------
hereunder.
"Guarantor Senior Indebtedness" means, with respect to any Guarantor,
-----------------------------
at any date, (i) the maximum amount of all Indebtedness of such Guarantor under
the Revolving Credit Facility, including principal, premium, if any, and
interest on such Indebtedness and all other amounts due on or in connection with
such Indebtedness including all charges, fees and expenses (without regard to
any limitation set forth in the terms thereof and whether or not such
Indebtedness is invalidated or set aside or otherwise legally unenforceable,
unless due to willful misconduct or bad faith on the part of the lenders under
the Revolving Credit Facility or their agent) , (ii) all other Indebtedness of
such Guarantor for borrowed money, including principal, premium, if any, and
interest on such Indebtedness, unless the instrument under which such
Indebtedness of such Guarantor for borrowed money is created, incurred, assumed
or guaranteed expressly provides that such Indebtedness for borrowed money is
not senior or superior in right of payment to the Guarantee of such Guarantor,
and all renewals, extensions, modifications, amendments or refinancings thereof
and (iii) all interest on any Indebtedness referred to in clauses (i) and (ii)
during the pendency of any bankruptcy or insolvency proceeding, whether or not
allowed thereunder. Notwithstanding the foregoing, Guarantor Senior
Indebtedness shall not
5
include (a) Indebtedness which is pursuant to its terms or any agreement
relating thereto or by operation of law subordinated or junior in right of
payment or otherwise to any other Indebtedness of such Guarantor (without
regard, with respect to the Revolving Credit Facility, to any limitation set
forth in the terms thereof and other than, with respect to the Revolving Credit
Facility, due to the legal invalidity thereof, unless due to the willful
misconduct or bad faith on the part of the lenders under the Revolving Credit
Facility or their agent); provided, however, that no Indebtedness of such
-------- -------
Guarantor shall be deemed to be subordinated or junior in right of payment or
otherwise to any other Indebtedness of such Guarantor solely by reason of such
other Indebtedness being secured and such Indebtedness not being secured, (b)
the Guarantees, (c) any Indebtedness of such Guarantor to any of its
Subsidiaries, (d) any Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of the Bankruptcy Code, is without recourse
to such Guarantor, and (e) any Indebtedness or other obligation of such
Guarantor pursuant to or in connection with any Qualified Securitization
Transaction (whether entered into before or after the Issue Date) or the Trust
Obligations.
"Guarantors" means (i) each of Xxxxx & Minor Medical, Inc., a Virginia
----------
corporation; National Medical Supply Corporation, a Delaware corporation; Xxxxx
&Minor West, Inc., a California corporation; Koley's Medical Supply, Inc., a
Nebraska corporation; and Stuart Medical, Inc., a Pennsylvania corporation; and
(ii) each future Restricted Subsidiary that guarantees or otherwise provides
credit support (pursuant to the grant of a security interest or otherwise) for
any obligation of the Company or any of its Subsidiaries under the Revolving
Credit Facility.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
------
of an interest coupon appertaining thereto and, with respect to a Registered
Security, a Person in whose name a Security is registered on the Register.
"Incur" means, with respect to any Indebtedness or other obligation of
-----
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
---------- -------- ---------
correlative to the foregoing). Indebtedness of any Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company (or is merged into or consolidates with the Company or any of its
Subsidiaries), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Subsidiary of the Company (or
being merged into or consolidated with the Company or any of its Subsidiaries),
shall be deemed Incurred at the time any such Person becomes a Subsidiary of the
Company or merges into or consolidates with the Company or any of its
Subsidiaries.
"Indebtedness" means (without duplication), with respect to any
------------
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or
6
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) every net
obligation under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements of such Person and (vii) every obligation
of the type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor, guarantor or otherwise. Indebtedness shall include the liquidation
preference and any mandatory redemption payment obligations in respect of any
Disqualified Stock of the Company, and any Preferred Stock of a Restricted
Subsidiary of the Company. Indebtedness shall never be calculated taking into
account any cash and cash equivalents held by such Person. Indebtedness shall
not include (A) obligations of the Company or its Subsidiaries in respect of
loans against life insurance policies of which any of them is the owner not in
excess of the aggregate cash values thereof, (B) guarantees entered into prior
to the Issue Date by the Company or its Subsidiaries in respect of Indebtedness
of their customers in an aggregate amount of not more than $5 million or (C) the
obligations of the Company or its Subsidiaries in respect of any Qualified
Securitization Transaction.
"Indenture" means this instrument as originally executed and as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide that
----------------
the principal amount thereof payable at Stated Maturity is based, at least in
part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"Initial Securitization" means the transactions entered into in
----------------------
connection with the Receivables Purchase Agreement dated as of July 14, 2000,
among O&M Funding Corp., the Company, Falcon Asset Securitization Corporation,
Receivables Capital Corporation, Liberty Street Funding Corp., Bank One, NA,
Bank of America, National Association, and The Bank of Nova Scotia as amended,
restated, supplemented, replaced or otherwise modified from time to time.
"interest", when used with respect to an Original Issue Discount
--------
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to any other Security, means
the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security, means
---------------------
the Stated Maturity of an installment of interest on such Security.
"Issue Date" means the original issue date of the Securities.
----------
7
"Junior Subordinated Debentures" shall mean up to $142,268,050
------------------------------
aggregate principal amount of Junior Convertible Subordinated Debentures issued
pursuant to the Junior Subordinated Indenture dated as of May 13, 1998 between
the Company and the First National Bank of Chicago, as Trustee, and the First
Supplemental Indenture dated as of May 13, 1998 to such Indenture, as in effect
on the Issue Date.
"Lien" means, with respect to any property or assets, any mortgage or
----
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Liquidated Damages" means all liquidated damages then owing pursuant
------------------
to the Registration Rights Agreement.
"Market Exchange Rate" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 3.1, (i) for a conversion of any currency
unit into Dollars, the exchange rate between the relevant currency unit and
Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading--Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
-----------------------
other section of The Wall Street Journal in which foreign currency exchange
-----------------------
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the date on
--------
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"O&M Funding Corp." means O&M Funding Corp., a Virginia corporation,
----------------
and its successors.
"O&M Trust" means Xxxxx & Minor Trust I, a Delaware business trust,
---------
and its successors.
"Obligations" has the meaning set forth in Section 17.2 hereof.
-----------
"Officer" means the Chairman of the Board, the President, the Chief
-------
Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company.
8
"Officers' Certificate" of the Company or of any Guarantor means a
---------------------
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company or such Guarantor, as
the case may be, and delivered to the Trustee. Unless the context otherwise
requires, each reference herein to an "Officers' Certificate" shall mean an
Officers' Certificate of the Company. References herein, or in any Security or
Senior Subordinated Guarantee, to any officer of a Guarantor or other Person
that is a partnership shall mean such officer of the partnership or, if none, of
a general partner of the partnership authorized thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general counsel
------------------
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
--------------------------------
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
-----------
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or any Guarantor) in trust or set aside
and segregated in trust by the Company or a Guarantor (if the Company or a
Guarantor, as the case may be, shall act as a Paying Agent) for the Holders of
such Securities and any interest coupons appertaining thereto, provided that, if
--------
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections 18.2 and
18.3, with respect to which the Company has effected Legal Defeasance and/or
Covenant Defeasance as provided in Article 18; and
(iv) Securities which have been replaced or paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; provided,
--------
however, that in determining whether the Holders of the requisite principal
-------
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or, waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding
9
for such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Certificate, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (w) above) of such Security, (y) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 3.1,
and (z) Securities owned by the Company, any Guarantor or any other obligor upon
the Securities or any Affiliate of the Company, of any Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, any Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, of any Guarantor or
of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of, premium, if any, interest, if any, and any other payments due on
any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
-----------------
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula or formulae for determining
the rate or rates of interest thereon, if any, the Maturity thereof, the
redemption provisions, if any, and any other terms specified as contemplated by
Section 3.1, with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Permitted Junior Securities" has the meaning set forth in Section
---------------------------
17.2 hereof.
"Person" means any individual, corporation, limited or general
------
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
----------------
within any series, means the place or places where the principal of, premium, if
any, interest and any other payments due on such Securities are payable as
specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and,
10
for the purposes of this definition, any Security authenticated and delivered
under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Stock," as applied to the Capital Stock of any Person,
---------------
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Qualified Securitization Transaction" means the Initial
------------------------------------
Securitization and any other transaction or series of transactions that has been
or may be entered into by the Company or any of its Restricted Subsidiaries in
connection with or reasonably related to a transaction or series of transactions
in which the Company or any of its Restricted Subsidiaries may sell, convey or
otherwise transfer to (i) a Securitization Subsidiary or (ii) any other Person,
or may grant a security interest in, any Receivables and Receivables Related
Assets or interests therein secured by the merchandise or services financed
thereby (whether such Receivables and Receivables Related Assets are then
existing or arising in the future) of the Company or any of its Restricted
Subsidiaries, and any assets related thereto including, without limitation, all
security interests in merchandise or services financed thereby, all collections
received (including recoveries) and proceeds of such Receivables and Receivables
Related Assets, and other assets which are customarily sold or in respect of
which security interests are customarily granted in connection with
securitization transactions involving such assets.
"Receivables" means any right of payment, whether constituting an
-----------
account, chattel paper, instrument, general intangible or otherwise, arising in
connection with the sale, lease or financing by the Company or any Restricted
Subsidiary of the Company of merchandise or rendering of services, and monies
due thereunder.
"Receivables Related Assets" means (i) any rights arising under the
--------------------------
documentation governing or relating to Receivables (including rights in respect
of Liens securing such Receivables and other credit support in respect of such
Receivables), (ii) any proceeds of such Receivables and any lockboxes or
accounts in which such proceeds are deposited, (iii) spread accounts and other
similar accounts (and any amounts on deposit therein) established in connection
with a Qualified Securitization Transaction, (iv) any warranty, indemnity,
dilution and other intercompany claim arising out of the documentation
evidencing such Qualified Securitization Transaction and (v) other assets that
are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Redeemable Interest" of any Person means any equity security of or
-------------------
other ownership interest in such Person that by its terms (or by the terms of
any security into which it is convertible or for, which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the Final Stated
Maturity of the Securities.
11
"Redemption Date", when used with respect to any Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
----------------
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
-------------------
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Representative" has the meaning set forth in Section 17.2 hereof.
--------------
"Responsible Officer", when used with respect to the Trustee, shall
-------------------
mean any vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust officer, or any
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also shall mean, with
respect to a particular corporate trust matter, any officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" of a Person means any Subsidiary of the
---------------------
referent Person that is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means the Credit Agreement, dated as of
-------------------------
April 24, 2000, as amended, among the Company as borrower thereunder, certain
Subsidiaries of the Company as guarantors thereunder, the lenders named therein,
and Bank of America, N. A., as administrative agent, including any deferrals,
renewals, extensions, replacements, refinancings or refundings thereof, or
amendments, modifications or supplements thereto and any agreement providing
therefor whether by or with the same or any other lender, creditors, group of
lenders or group of creditors and including related notes, guarantee agreements
and other instruments and agreements executed in connection therewith.
"Security" or "Securities" has the meaning stated in the first recital
-------- ----------
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Securitization Subsidiary" means O&M Funding Corp. and any other
-------------------------
Wholly Owned Subsidiary of the Company which engages in no activities other than
those reasonably related to or in connection with the entering into of
securitization transactions and which is designated by the Board of Directors of
the Company (as provided below) as a Securitization Subsidiary, provided that
--------
with respect to O&M Funding Corp. or any such other Wholly Owned Subsidiary (a)
no portion of the indebtedness or any other obligations (contingent or
otherwise) of any such Restricted Subsidiary (i) is guaranteed by the Company or
any other Restricted Subsidiary of the Company other than pursuant to Standard
Securitization Obligations, (ii) is recourse to or obligates the Company or any
other Restricted Subsidiary of the Company in any way other than pursuant to
Standard Securitization Obligations or (iii) subjects the Company or
12
any other Restricted Subsidiary of the Company, directly or indirectly,
contingently or otherwise, to any Lien or to the satisfaction thereof, other
than pursuant to Standard Securitization Obligations, (b) neither the Company
nor any other Restricted Subsidiary of the Company (i) provides any credit
support to or (ii) has any material contract, agreement, arrangement or
understanding no less favorable to the Company or such Restricted Subsidiary
than could be obtained from an unrelated person (other than, in the case of
subclauses (i) and (ii) of this clause (b) , entered into in the ordinary course
of business in connection with a Qualified Securitization Transaction and
intercompany notes relating to the sale of Receivables to such Securitization
Subsidiary) with any such Restricted Subsidiary and (c) neither the Company nor
any Restricted Subsidiary of the Company has any obligation to maintain or
preserve the financial condition of any such Restricted Subsidiary or to cause
such entity to achieve certain levels of operating results. Any such designation
by the Board of Directors of the Company (other than with respect to O&M Funding
Corp.) shall be evidenced to the Trustee by filing with the Trustee a certified
copy of the resolutions of the Board of Directors of the Company giving effect
to such designation.
"Senior Guarantees" means the Guarantees by the Guarantors of
-----------------
Obligations under the Revolving Credit Facility.
"Senior Indebtedness" means, at any date, (i) all Indebtedness of the
-------------------
Company under the Revolving Credit Facility, including principal, premium, if
any, and interest on such Indebtedness and all other amounts due on or in
connection with such Indebtedness including all charges, fees and expenses, (ii)
all other Indebtedness of the Company for borrowed money, including principal,
premium, if any, and interest on such Indebtedness, unless the instrument under
which such Indebtedness of the Company for money borrowed is created, incurred,
assumed or guaranteed expressly provides that such Indebtedness for money
borrowed is not senior or superior in right of payment to the Securities, and
all renewals, extensions, modifications, amendments or refinancings thereof and
(iii) all interest on any Indebtedness referred to in clauses (i) and (ii)
accruing during the pendency of any bankruptcy or insolvency proceeding, whether
or not allowed thereunder. Notwithstanding the foregoing, Senior Indebtedness
shall not include (a) Indebtedness which is pursuant to its terms or any
agreement relating thereto or by operation of law subordinated or junior in
right of payment or otherwise to any other Indebtedness of the Company;
provided, however, that no Indebtedness of the Company shall be deemed to be
-------- -------
subordinate or junior in right of payment or otherwise to any other Indebtedness
of the Company solely by reason of such other Indebtedness being secured and
such Indebtedness not being secured, (b) the Securities, (c) any Indebtedness of
the Company to any Restricted Subsidiary of the Company, (d) any Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of the Bankruptcy Law, is without recourse to the Company, and (e) any
Indebtedness or other obligation of the Company pursuant to or in connection
with any Qualified Securitization Transaction or the Trust Obligations (whether
entered into before or after the Issue Date).
"Senior Subordinated Guarantees" means the Guarantees of the
------------------------------
Guarantors.
"Special Purpose Trust" means O&M Trust, a statutory business trust
---------------------
established by the Company for the purpose of issuing the Trust Preferred
Securities for aggregate gross proceeds of up to $138,000,000 and issuing up to
$4,268,050 of common beneficial interests.
13
"Standard Securitization Obligations" means representations,
-----------------------------------
warranties, covenants and indemnities (including those related to servicing)
entered into by the Company or any Restricted Subsidiary which are reasonably
customary in Qualified Securitization Transactions.
"Stated Maturity", when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security or in an interest coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary", of any Person means (i) a corporation more than 50% of
----------
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more other Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and voting power relating to the
policies, management and affairs thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
-------------------
and as in effect on the date of this Indenture, except as provided in Section
8.3; provided, however, that if the Trust Indenture Act of 1939 is amended after
-------- -------
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Obligations" means the obligations of the Company and its
-----------------
Restricted Subsidiaries under the Trust Preferred Securities, the related Junior
Subordinated Debentures and the agreements entered into in connection therewith,
all as in effect on the Issue Date.
"Trust Preferred Securities" means the 2,640,000 $2.6875 Term
--------------------------
Convertible Securities of the Special Purpose Trust outstanding as of the Issue
Date, as in effect at such time, less the aggregate liquidation amount of such
Trust Preferred Securities that is prepaid, redeemed, repurchased or retired
from time to time.
"Trustee" means the party named as such in the first paragraph of this
-------
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
-------------
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of Securities,
-----------------------
shall have the meaning established in accordance with Section 3.1(b) with
respect to such series of Securities.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States of America for the payment of which its full
faith and credit is pledged or
14
(y) 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 (x) or (y), 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 3(a)(2) of the
Securities Act of 1933, as amended) 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 the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Person" means, unless otherwise specified with respect to the
-----------
Securities of any series as contemplated by Section 3.1, a citizen or resident
of the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or an estate or trust, the income of which is subject to United States
federal income taxation regardless of its source.
"Vice President", when used with respect to the Company or any
--------------
Guarantor, means any Vice President of such Person whether or not designated by
a number or a word or words added before or after the title "Vice President."
"Voting Stock" of any Person means the Capital Stock of such Person
------------
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" of any Person means a Restricted Subsidiary
-----------------------
of such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
(a) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Legal Defeasance" 18.2
"Covenant Defeasance" 18.3
"Event of Default" 5.1
"NASDAQ" 14.3
"Register" 3.5
"Registrar" 3.5
15
Section 1.2 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee such certificates
and opinions as may be required under the Trust Indenture Act (including Section
314(c) of the Trust Indenture Act). Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer or
officers of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or agreement provided for in this Indenture (other than pursuant to
Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or agreement and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such condition or
agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or agreement has been complied with.
Section 1.3 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or
16
representations by an accountant or firm of accountants in the employ of the
Company, unless such officer or counsel, as the case may be, knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed (either physically or by means
of a facsimile or an electronic transmission, provided, in the case of an
--------
electronic transmission, that it is transmitted through the facilities of a
Depositary) by such Holders in person or by agent or proxy duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof pursuant to the
second paragraph of Section 13.4, either in person or by proxies duly appointed
in writing, at any meeting of Holders of Securities of such series duly called
and held in accordance with the provisions of Article 13, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
--------
or record or both are received (either physically or, if the Securities are held
through the facilities of a Depositary, by means of a facsimile or an electronic
transmission, provided, in the case of an electronic transmission, that it is
--------
transmitted through the facilities of a Depositary) by the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or instruments and
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at such meeting. The Company and the Trustee may assume
that any Act of a Holder has not been modified or revoked unless written notice
to the contrary is received prior to the time that the action to which such Act
relates has become effective. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 13.6.
(a) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same may be
proved in any manner which the Trustee deems sufficient.
(b) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depository, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such trust company, bank, banker or
other depository, or exhibited to it, the Bearer Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
holding such
17
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and any interest coupons appertaining thereto and the
Holder of every Security or interest coupon issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding Section
316(c) of the Trust Indenture Act, any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
--------
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents, each of which may do so pursuant to such appointment with
regard to all or any part of the principal amount of such Security to which such
appointment relates.
Section 1.5 Notices, Etc., to Trustee, Company and Guarantors. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
18
(a) the Trustee by any Holder or by the Company or any Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or at any other
address previously furnished in writing to the Holders or the Company by the
Trustee, or, with respect to notices by the Company, transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following
facsimile number: (000) 000-0000 or to any other facsimile number previously
furnished in writing to the Company by the Trustee, or
(b) the Company or any Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to it addressed
to it at the address of the Company's principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company or, with respect to notices by the
Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (000) 000-0000 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his or her address as it appears in the Register, within the time
prescribed for the giving of such notice, and (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
19
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7 Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 1.8 Successor and Assigns. All agreements in this Indenture
by the parties hereto shall bind their respective successors and assigns and
inure to the benefit of their respective successors and assigns, whether so
expressed or not.
Section 1.9 Separability. In case any provision of this Indenture or
the Securities or the Senior Subordinated Guarantees shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1.10 Benefits of Indenture. Nothing in this Indenture or in
the Securities or the Senior Subordinated Guarantees, expressed or implied,
shall give to any Person, other than the parties hereto, any Registrar, any
Paying Agent, and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.11 Incorporators, Officers and Directors of the Company
Exempt from Individual Liability. No recourse under or upon any obligation or
agreement of or contained in this Indenture or of or contained in any Security
or interest coupon appertaining thereto, or for any claim based thereon or
otherwise in respect thereof, or because of any indebtedness represented
thereby, shall be had against any incorporator, officer or director, as such,
past, present or future, of the Company or any successor Person, either directly
or through the Company or any successor Person, whether by virtue of any
constitution, statute or rule of law, by the enforcement of any assessment or
penalty, by any legal or equitable proceeding or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of the acceptance of, and as a part of the consideration for the
execution of this Indenture and the issuance of, the Securities and any interest
coupons appertaining thereto.
Section 1.12 Governing Law; Conflict with Trust Indenture Act. THIS
INDENTURE, THE SECURITIES, THE SENIOR SUBORDINATED GUARANTEES ENDORSED THEREON
AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE DEEMED TO BE CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE
WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE. This Indenture is
subject to the Trust Indenture Act and if and to the extent that any provision
hereof limits, qualifies or conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
20
Whether or not this Indenture is required to be qualified under the Trust
Indenture Act, the provisions of the Trust Indenture Act required to be included
in an indenture in order for such indenture to be so qualified shall be deemed
to be included in this Indenture with the same effect as if such provisions were
set forth herein and any provisions hereof which may not be included in an
indenture which is so qualified shall be deemed to be deleted or modified to the
extent such provisions would be required to be deleted or modified in an
indenture so qualified.
Section 1.13 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
interest coupon or any Senior Subordinated Guarantee other than a provision in
the Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal, premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; provided that no interest shall accrue on
--------
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, if such amount is so paid on the next succeeding Business Day.
Section 1.14 Moneys of Different Currencies to Be Segregated. The
Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15 Independence of Agreements. All agreements in this
Indenture shall be given independent effect so that if a particular action or
condition is not permitted by any such agreement, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
agreement shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
Section 1.16 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2.
SECURITY AND SENIOR SUBORDINATED GUARANTEE FORMS
Section 2.1 Forms Generally. The Securities of each series and the
interest coupons, if any, to be attached thereto and the Senior Subordinated
Guarantees to be endorsed thereon shall be in substantially such form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends
21
or endorsements placed thereon as may be required to comply with the rules of
any applicable securities exchange, organizational document, governing
instrument or law or as may, consistently herewith, be determined by the
officers executing such Securities and interest coupons, if any, or Senior
Subordinated Guarantees to be endorsed thereon, as the case may be, as evidenced
by their execution of the Securities and interest coupons, if any, or Senior
Subordinated Guarantees to be endorsed thereon, as the case may be. If temporary
Securities and Senior Subordinated Guarantees of any series are issued as
permitted by Section 3.4, the form thereof also shall be established as provided
in the preceding sentence. If the forms of Securities and interest coupons, if
any, and Senior Subordinated Guarantees of any series are established by, or by
action taken pursuant to, a Board Resolution, a copy of the Board Resolution
together with an appropriate record of any such action taken pursuant thereto,
including a copy of the approved form of Securities or interest coupons, if any,
and Senior Subordinated Guarantees shall be delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities with the Senior Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the within-
mentioned Indenture.
SUNTRUST BANK, as Trustee
By: ________________________
Authorized Signatory
Section 2.3 Form of Senior Subordinated Guarantee
SENIOR SUBORDINATED GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of July 2, 2001 (the "Original
--------
Indenture"), among Xxxxx & Minor, Inc., (the "Company"), the Guarantors listed
--------- -------
on Schedule I thereto (the "Guarantors") and SunTrust Bank, as trustee (the
----------
"Trustee"), as supplemented by the [Insert Number] Supplemental Indenture (the
-------
"[Insert Number]
-------------
22
Supplemental Indenture" together with the Original Indenture, the "Indenture")
---------------------- ---------
dated as of ___________ among the Company, the Guarantors and the Trustee, (a)
the due and punctual payment of the principal of, premium, if any, and interest
on the Notes (as defined in the [Insert Number] Supplemental Indenture), 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 the Company 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 Notes 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 at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article
15 of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Guarantee. Each Holder of a Note, 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 Guarantee shall cease
to be so subordinated and subject in right of payment upon any defeasance of
this Note in accordance with the provisions of the Indenture.
IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Subordinated Guarantee to be duly executed.
Each of the Guarantors Listed on Schedule I
to the Indenture, As Guarantor of the
Securities
By:* __________________________
[Officer]
Attest:*
___________________________
[Secretary]
[Assistant Secretary]
Section 2.4 Global Securities. If Securities of or within a series are
issuable in whole or in part in global form (each, a "Global Security"), any
---------------
such Global Security may provide that it shall represent the aggregate or
specified amount of Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
______________________
* Signing as duly authorized officer for each such Guarantor.
23
exchanges for certificated securities. Any endorsement of a Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Securities represented thereby, shall be made
in such manner and by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of Section 3.3, Section 3.4, if applicable, and
Section 3.5, the Trustee shall deliver and redeliver any Global Security in the
manner and upon instructions given by the Global Person or Persons specified
therein or in the applicable Company Order. Any instructions by the Company with
respect to endorsement or delivery or redelivery of a Global Security shall be
in writing but need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Global Security if such Security was never issued and sold by the Company and
the Company delivers to the Trustee the Global Security together with written
instructions (which need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last paragraph of
Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
Section 2.5 Form of Legend for Global Securities. Any Security global
form authenticated and delivered hereunder shall bear a legend in substantially
the following form or in such other form as may be specified in accordance with
Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3.
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
(a) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board
24
Resolution and (subject to Section 3.3) set forth, or determined in the manner
provided, in an Officers' Certificate or (iii) in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or
any Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods of calculating such rate or
rates of interest, the date or dates from which such interest shall accrue
or the method or methods by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable, the
right, if any, of the Company to defer or extend an Interest Payment Date
and, with respect to Registered Securities, the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest
Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served and (in the case of Bearer
Securities) where notices to Holders pursuant to Section 1.6 will be
published;
(6) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 11.3, the manner in which the particular
Securities of such series (if less than all Securities of such series are
to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
25
(8) if other than denominations of $1,000 and any integral multiple
thereof, if Registered Securities, and if other than denominations of
$5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit
or units) other than that in which such Securities are denominated or
designated to be payable, the currency or currencies (including currency
unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined and any
special voting or defeasance provisions in connection therewith;
(12) if other than the entire principal amount thereof, the portion of
the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section 5.2 or
the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom any
interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.1 or agreements of the Company set forth
in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures and
documentation the Company will pay additional amounts on the Securities and
interest coupons, if any, of that series held by a Person who is not a U.S.
Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar
26
charges withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional amounts
(and the terms of any such option);
(17) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or
both, and any restrictions applicable to the offering, sale, transfer or
delivery of Bearer Securities and, if other than as provided in Section
3.5, the terms upon which Bearer Securities of a series may be exchanged
for Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and any
temporary Global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of the
series;
(20) if other than as provided in Section 2.3, the forms of the Senior
Subordinated Guarantees applicable to such series and the event or events
upon which the Senior Subordinated Guarantees may be released for such
Senior Subordinated Guarantees;
(21) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 18.2 and 18.3, or such
other means of Legal Defeasance or Covenant Defeasance as may be specified
for the Securities and interest coupons, if any, of such series;
(22) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(23) if the Securities of the series shall be issued in whole or in
part in global form, (i) the Depositary for Global Securities, (ii) whether
beneficial owners of interests in the Global Securities may exchange such
interests for certificated Securities of such series, to be registered in
the names of or to be held by such beneficial owners or their nominees and
to be of like tenor of any authorized form and denomination, and (iii) if
other than as provided in Section 3.5, the circumstances under which any
such exchange may occur;
(24) any restrictions on the registration, transfer or exchange of the
Securities;
(25) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(26) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Interests of the Company,
including provisions for the
27
payment of interest on Securities being converted or exchanged as
contemplated by Section 3.7(d) and Section 14.2;
(27) whether the Securities are secured or unsecured, and if secured,
the security and related terms in connection therewith;
(28) the definition of "Unrestricted Subsidiary" to be used for such
series; and
(29) any other terms of the series including any terms which may be
required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing
of Securities of the series.
(b) Subject to Section 1.12 and any controlling provision of the Trust
Indenture Act, in the event of any inconsistency between the terms of this
Indenture and the terms applicable to a series of Securities established in the
manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officers'
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(c) All Securities of any one series and interest coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2 Denominations. Unless otherwise provided as contemplated
by Section 3.1(b), any Registered Securities of a series denominated in Dollars
shall be issuable in denominations of U.S. $1,000 and any integral multiple
thereof and any Bearer Securities of a series denominated in Dollars shall be
issuable in the denomination of U.S. $5,000 and any integral multiple thereof.
Securities denominated in a Foreign Currency shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 3.3 Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by the Chairman of the Board, the
President, the Chief Executive Officer, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer or any Vice President of the Company, and need
not be attested. The signatures of any of these officers on the Securities may
be manual or facsimile. The interest coupons, if any, of Bearer Securities shall
bear the facsimile signature of the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer or any Vice President of the Company, and need not be
attested.
28
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any interest coupons appertaining thereto, of any series executed
by the Company and having endorsed (by attachment or imprint) thereon the Senior
Subordinated Guarantees executed as provided in Section 15.6 by the Guarantors
to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities with such Senior Subordinated
Guarantees endorsed thereon, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities with such Senior
Subordinated Guarantees endorsed thereon to or upon the order of the Company (as
set forth in such Company Order); provided, however, that, in the case of
-------- -------
Securities of a series offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
If the form or terms of the Securities with the Senior Subordinated
Guarantees endorsed thereon of a series have been established by or pursuant to
one or more Board Resolutions or one or more indentures supplemental hereto as
permitted by Sections 2.1 and 3.1, in authenticating such Securities with the
Senior Subordinated Guarantees endorsed thereon and accepting the additional
responsibilities under this Indenture in relation to such Securities with the
Senior Subordinated Guarantees endorsed thereon, the Trustee shall be entitled
to receive, and (subject to Section 315(a) through (d) of the Trust Indenture
Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest coupons
with Senior Subordinated Guarantees endorsed thereon have been established
by or pursuant to a Board Resolution as permitted by Section 2.1, that such
forms have been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities and any interest coupons with
Senior Subordinated Guarantees endorsed thereon have been, or, in the case
of Securities of a series with Senior Subordinated Guarantees endorsed
thereon offered in a Periodic Offering, will be, established by or pursuant
to a Board Resolution as permitted by Section 3.1, that such terms have
been, or, in the case of Securities of a series with Senior Subordinated
Guarantees endorsed thereon offered in a Periodic Offering, will be,
established in conformity with the provisions of this Indenture, subject,
in the case of Securities with Senior Subordinated Guarantees endorsed
thereon offered in a Periodic Offering, to any conditions specified in such
Opinion of Counsel;
29
(3) if the form or terms of such Securities have been established in
an indenture supplemental hereto, that such supplemental indenture has been
duly authorized, executed and delivered by the Company and the Guarantors
and, when duly authorized, executed and delivered by the Trustee, will
constitute a legal, valid and binding obligation enforceable against the
Company and the Guarantors in accordance with its terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law), and (ii) such other reasonable exceptions as may be specified in
such Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Senior Subordinated Guarantees when issued by
the Company and the Guarantors and (in the case of the Securities)
authenticated and delivered by the Trustee in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company and the Guarantors,
respectively, enforceable against the Company and the Guarantors in
accordance with their terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except
further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Securities or Senior Subordinated Guarantees
denominated other than in Dollars (or a Foreign Currency or currency unit
judgment in respect of such claim) be converted into Dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments
in Foreign Currencies or currency units or payments outside the United
States, and (ii) such other reasonable exceptions as may be specified in
such Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of such Securities have
been complied with and that, to the knowledge of the signers of such
certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the opinion of the Trustee (after consultation with counsel), the issue of such
Securities pursuant to this Indenture will materially adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise or
if the Trustee determines that such authentication may not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
30
With respect to Securities with Senior Subordinated Guarantees
endorsed thereon of a series offered in a Periodic Offering, the Trustee may
rely, as to the authorization by the Company of any of such Securities and by
the Guarantors of any such Senior Subordinated Guarantees endorsed thereon, the
form and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and the other documents
delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in
connection with the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part as Global
Securities, then the Company and the Guarantors shall execute and the Trustee
shall, in accordance with this Section and the Company Order, with respect to
such series, authenticate and deliver one or more Global Securities with Senior
Subordinated Guarantees endorsed thereon that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Global Security
or Securities, (ii) shall be registered, if a Registered Security, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear the legend set
forth in Section 2.5.
Each Depositary designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation. If requested by
the Company, the Trustee shall enter into an agreement with a Depositary
governing the respective duties and rights of such Depositary and the Trustee
with regard to Global Securities with Senior Subordinated Guarantees endorsed
thereon.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified pursuant to
Section 3.1.
No Security or interest coupon appertaining thereto or Senior
Subordinated Guarantees endorsed thereon shall be entitled to any benefits under
this Indenture or be valid or obligatory for any purpose until such Security has
been authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent. Such signature upon any Security
with Senior Subordinated Guarantees endorsed thereon shall be conclusive
evidence, and only evidence, that such Security has been duly authenticated and
delivered under this Indenture and is entitled to the benefits of this Indenture
and that each Senior Subordinated Guarantee endorsed thereon has been duly
endorsed thereon and delivered under this Indenture. Except as permitted by
Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant interest coupons for interest then matured have
been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never
31
to have been authenticated and delivered hereunder and shall not be entitled to
the benefits of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Senior Subordinated Guarantees endorsed thereon of such series
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities with Senior
Subordinated Guarantees endorsed thereon in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities and such Senior Subordinated
Guarantees may determine, as conclusively evidenced by their execution of such
Securities and interest coupons, if any, and such Senior Subordinated
Guarantees. In the case of Securities of any series, such temporary Securities
may be Global Securities, representing all or a portion of the Outstanding
Securities of such series.
Except in the case of temporary Global Securities, each of which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company and the Guarantors will cause definitive
Securities with Senior Subordinated Guarantees endorsed thereon of such series
to be prepared without unreasonable delay. After preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
pursuant to Section 9.2 in a Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured interest coupons
appertaining thereto), the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities with Senior Subordinated Guarantees endorsed
thereon of the same series of authorized denominations and of like tenor;
provided, however, that no definitive Bearer Security shall be delivered in
-------- -------
exchange for a temporary Registered Security; and provided further, that no
-------- -------
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless such delivery shall occur outside the United States. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series except as otherwise specified as contemplated by Section 3.1.
Section 3.5 Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
--------
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
32
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered to
such Depositary or nominee thereof or to a successor of such Depositary or
nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that series, the Company and the Guarantors shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities with Senior
Subordinated Guarantees endorsed thereon of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor and containing
identical terms and provisions.
Bearer Securities (except for any temporary global Bearer Securities)
or any interest coupons appertaining thereto (except for interest coupons
attached to any temporary global Bearer Security) shall be transferable by
delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities with Senior Subordinated
Guarantees endorsed thereon which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing interest coupon or coupons, or
the surrender of such missing interest coupon or interest coupons may be waived
by the Company, the Guarantors and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing interest coupon in respect of
which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
-------- -------
provided in Section 9.2, interest represented by interest coupons shall be
payable only upon presentation and surrender of those interest coupons at an
33
office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date such Bearer Security shall be surrendered without the interest
coupon relating to such Interest Payment Date or proposed date of payment, as
the case may be (or, if such interest coupon is so surrendered with such Bearer
Security, such interest coupon shall be returned to the Person so surrendering
the Bearer Security), and interest, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such interest coupon, when due in accordance with
the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities for Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange. Neither the Company, the
Guarantors, the Trustee nor the Registrar shall exchange any Bearer Securities
for Registered Securities if it has received an Opinion of Counsel that as a
result of such exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not appointed by
the Company prior to the resignation of the Depositary and, in any event, within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's designation of the Depositary pursuant to Section
3.l(b)(22) shall no longer be effective with respect to the Securities of such
series and the Company and the Guarantors shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of certificated
Securities with Senior Subordinated Guarantees endorsed thereon of such series
of like tenor, shall authenticate and deliver. Securities with Senior
Subordinated Guarantees endorsed thereon of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities of
such series of like tenor in exchange for such Global Security or Securities in
global form.
The Company may at any time in its sole discretion determine that
Global Securities shall no longer be represented by such a Global Security or
Securities. In such event
34
the Company and the Guarantors shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities
with Senior Subordinated Guarantees endorsed thereon of such series of like
tenor, shall authenticate and deliver, Securities with Senior Subordinated
Guarantees endorsed thereon of such series of like tenor in certificated form,
in authorized denominations and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities of such series of like
tenor in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Global
Security of such series in exchange in whole or in part for Securities of such
series in certificated form on such terms as are acceptable to the Company, the
Guarantors and such Depositary. Thereupon, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new certificated Security
or Securities with Senior Subordinated Guarantees endorsed thereon of the
same series of like tenor, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security with Senior Subordinated
Guarantees endorsed thereon of like tenor in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of certificated Securities
delivered to Holders thereof.
Upon the exchange of a Global Security with Senior Subordinated
Guarantees endorsed thereon for Securities with Senior Subordinated Guarantees
endorsed thereon in certificated form, such Global Security with Senior
Subordinated Guarantees endorsed thereon shall be cancelled by the Trustee.
Unless expressly provided with respect to the Securities of any series that such
Security may be exchanged for Bearer Securities, Securities with Senior
Subordinated Guarantees endorsed thereon in certificated form issued in exchange
for a Global Security with Senior Subordinated Guarantees endorsed thereon
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security with Senior
Subordinated Guarantees endorsed thereon, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Securities with Senior Subordinated
Guarantees endorsed thereon to the Persons in whose names such Securities with
Senior Subordinated Guarantees endorsed thereon are so registered.
Whenever any Securities are surrendered for exchange, the Company and
the Guarantors shall execute, and the Trustee shall authenticate and deliver,
the Securities with Senior Subordinated Guarantees endorsed thereon which the
Holder making the exchange is entitled to receive.
All Securities with Senior Subordinated Guarantees endorsed thereon
issued upon any registration of transfer or upon any exchange of Securities with
Senior Subordinated
35
Guarantees endorsed thereon shall be the valid obligations of the Company and
the Guarantors, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities with Senior Subordinated Guarantees
endorsed thereon surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Guarantors,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Guarantors, the
Registrar and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 8.6 or 11.7 not involving any transfer.
The Company and the Guarantors shall not be required (i) to issue,
register the transfer of, or exchange any Securities with Senior Subordinated
Guarantees endorsed thereon for a period beginning at the opening of business 15
days before any selection for redemption of Securities of like tenor and of the
series of which such Security is a part and ending at the close of business on
the earliest date on which the relevant notice of redemption is deemed to have
been given to all Holders of Securities of like tenor and of such series to be
redeemed; (ii) to register the transfer of or exchange any Registered Security
with Senior Subordinated Guarantees endorsed thereon so selected for redemption,
in whole or in part, except the unredeemed portion of any Security being
redeemed in part; or (iii) to exchange any Bearer Security with Senior
Subordinated Guarantees endorsed thereon so selected for redemption, except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor; provided that such Registered Security shall be simultaneously
--------
surrendered for redemption.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6 Replacement Securities. If a mutilated Security or a
Security with a mutilated interest coupon appertaining to it is surrendered to
the Trustee, together with, in proper cases, such security or indemnity as may
be required by the Company, the Guarantors or the Trustee to save each of them
harmless, the Company and the Guarantors shall execute and the Trustee shall
authenticate and deliver a replacement Registered Security with Senior
Subordinated Guarantees endorsed thereon, if such surrendered Security was a
Registered Security, or a replacement Bearer Security with Senior Subordinated
Guarantees endorsed thereon with interest coupons corresponding to the interest
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity.
If there shall be delivered to the Company, the Guarantors and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security or interest coupon
36
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of any of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or interest coupon has been
acquired by a bona fide purchaser, the Company and the Guarantors shall execute
and the Trustee shall authenticate and deliver in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen interest coupon appertains (with all appurtenant interest coupons
not destroyed, lost or stolen), a replacement Registered Security with Senior
Subordinated Guarantees endorsed thereon, if such Holder's claim appertains to a
Registered Security with Senior Subordinated Guarantees endorsed thereon, or a
replacement Bearer Security with Senior Subordinated Guarantees endorsed thereon
with interest coupons corresponding to the interest coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen interest coupon appertains, if such Holder's claim
appertains to a Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security or
interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Senior Subordinated Guarantees endorsed thereon, pay such
Security or interest coupon; provided, however, that payment of principal of and
-------- -------
any premium or interest on Bearer Securities shall, except as otherwise provided
in Section 9.2, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 3.1,
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the interest coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
and the Guarantors may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security with Senior Subordinated Guarantees endorsed
thereon of any series with its interest coupons, if any, issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security, or in exchange for a
Security to which a destroyed, lost or stolen interest coupon appertains, shall
constitute an original additional contractual obligation of the Company and the
relevant Guarantor, whether or not the destroyed, lost or stolen Security and
its interest coupon, if any, or the destroyed, lost or stolen interest coupon,
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their interest coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or interest
coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided as contemplated by Section 3.1, interest, if any, on
any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall
37
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to Section 9.2; provided, however, that at the option of the Company, interest
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on any series of Registered Securities that bears interest may be paid (i) by
check mailed to the address of the Person entitled thereto as it shall appear on
the Register of Holders of Securities of such series or (ii) at the expense of
the Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
--------
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in Writing to make such
payments at a Paying Agent located in the United States, provided that provision
--------
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(a) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
(b) In the case of any Registered Security of a series which is
converted or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any, on) which shall become due and payable, whether at a Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise,
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
Section 3.8 Persons Deemed Owners. Unless otherwise provided as
contemplated by Section 3.1, prior to due presentment of any Registered Security
for registration
38
of transfer, the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Section 3.7) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, any Guarantor, the Trustee nor any agent of the Company, any Guarantor
or the Trustee shall be affected by notice to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the Company,
the Guarantors, the Trustee and any agent of the Company, any Guarantor or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
interest coupon as the absolute owner of such Bearer Security or interest coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or interest
coupon be overdue, and neither the Company, the Guarantors, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantors, the Trustee or any agent of the
Company, any Guarantor or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. No holder of any beneficial interest in any Global Security, held on
its behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee as the owner of such Global Security for
all purposes whatsoever. With respect to any Global Security, nothing herein
shall prevent the Company, the Guarantors or the Trustee, or any agent of the
Company, any Guarantor or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security or impair, as
between such Depositary and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
rights of such Depositary (or its nominee) as Holder of such Global Security.
Section 3.9 Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, together with the Senior Subordinated Guarantees endorsed
thereon, shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities, together with interest coupons appertaining
thereto, if any, previously authenticated hereunder which the Company has not
issued and sold, and all Securities and interest coupons so delivered shall,
together with the Senior Subordinated Guarantees endorsed thereon, be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 3.9, except as
expressly permitted by this Indenture. All cancelled Securities and interest
coupons held by the Trustee shall, together with the Senior Subordinated
39
Guarantees endorsed thereon, be disposed of in accordance with its customary
procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
Section 3.10 Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use and in addition to the other
identification numbers printed on the Securities), and, in such case, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
--------
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12 Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4.
SATISFACTION AND DISCHARGE
Section 4.1 Termination of Company's Obligations Under the
Indenture. This Indenture will be discharged and will cease to be of further
effect as to all Securities issued hereunder, when:
(a) either:
(i) all Securities that have been authenticated, except lost, stolen
or destroyed Securities that have been replaced or paid and Securities for whose
payment money has been deposited in trust and thereafter repaid to the Company,
have been delivered to the Trustee for cancellation; or
(ii) all Securities that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a notice of
redemption or otherwise or will become due and payable within one year, and the
Company or any Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the benefit of the Holders,
cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination
of cash in U.S. dollars and non-callable U.S. Government Obligations, in amounts
as will be sufficient without consideration of any reinvestment of interest, to
pay and discharge the entire indebtedness on the Securities not delivered to the
Trustee for cancellation for
40
principal, premium and Liquidated Damages, if any, and accrued interest to the
date of maturity or redemption;
(b) no Default or Event of Default has occurred and is continuing
on the date of the deposit or will occur as a result of the deposit and the
deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Company or any Guarantor is a party or
by which the Company or any Guarantor is bound;
(c) the Company has paid or caused to be paid all sums payable by
it under the Indenture; and
(d) the Company has delivered irrevocable instructions to the
Trustee under the Indenture to apply the deposited money toward the payment of
the Securities at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an
opinion of counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this Section 4.1, the provisions of Section 4.2 and Section 18.6
hereof shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions
of Section 18.6, all money deposited with the Trustee pursuant to Section 4.1
shall be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 4.1 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 any Guarantor's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.1; provided that if the Company has made any payment of
--------
principal of, premium, if any, or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 5.
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such
41
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) failure to pay principal of (or premium, if any, on) any
Security when the same becomes due and payable at maturity, upon
redemption, or otherwise, whether or not such payment is prohibited by the
provisions of Article 17 hereof; or
(b) failure to pay interest on, or Liquidated Damages with respect
to, any Security when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment is
prohibited by Article 17 hereof; or
(c) default in the deposit of any sinking fund payment, when and as
due by, the terms of a Security of that series; or
(d) failure to perform any other covenant, warranty or agreement
contained in the Securities or this Indenture or any supplemental
indenture, and the Default continues for the period and after the notice
specified in the last paragraph of this Section 5.1; or
(e) a default or defaults under the terms of one or more
instruments evidencing or securing Indebtedness of the Company or any
Restricted Subsidiary of the Company having an outstanding principal amount
of $10 million or more individually or in the aggregate that has resulted
in the acceleration of the payment of such Indebtedness or the failure by
the Company or any of its Restricted Subsidiaries to pay principal when due
at the stated maturity of any such Indebtedness; or
(f) the rendering of a final judgment or final judgments (not
subject to appeal) against the Company, or any Restricted Subsidiary in an
amount of $5 million or more (net of any amounts covered by reputable and
creditworthy insurance companies), which remains undischarged or unstayed
for a period of 60 days after the date on which the right to appeal has
expired; or
(g) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Guarantor in
an involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or any Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Guarantor
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Guarantor or of any substantial part of the
property of the Company or any Guarantor, or ordering the winding up or
liquidation of the affairs of the Company or any Guarantor, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(h) the commencement by the Company or any Guarantor of a voluntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a
42
bankrupt or insolvent, or the consent by the Company or any Guarantor to
the entry of a decree or order for relief in respect of the Company or any
Guarantor in an involuntary case or proceeding under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding against
the Company or any Guarantor or the filing by the Company or any Guarantor
of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or state law, or the consent by the Company or any
Guarantor to the filing of such a petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Guarantor or of any
substantial part of the property of the Company or any Guarantor, or the
making by the Company or any Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or any Guarantor in writing of
its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or any Guarantor in furtherance of any
such action;
(i) the Guarantee of any Guarantor ceases to be in full force and
effect (other than in accordance with the terms of such Guarantee and
hereunder) or is declared null and void and unenforceable or found to be
invalid or any Guarantor denies its liability under its Guarantee (other
than by reason of release of such Guarantor from its Guarantee in
accordance with the terms hereunder and such Guarantee); or
(j) any other Event of Default provided as contemplated by Section
3.1 with respect to Securities of that series.
A Default under clause (d) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the outstanding Securities notify the Company and the Trustee, of the Default
in writing and the Company does not cure the Default within 30 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." Such notice shall
be given by the Trustee if so requested by the Holders of at least 25% in
principal amount of the Securities then outstanding. When a Default is cured, it
ceases.
Section 5.2 Acceleration; Rescission and Annulment. If an Event
of Default with respect to the Securities (other than an Event of Default
specified in clause (g) or (h) of Section 5.1 with respect to the Company)
occurs and is continuing, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the outstanding Securities by notice in writing to
the Company (and to the Trustee if given by the Holders) may declare the unpaid
principal of and accrued interest to the date of acceleration on all the
outstanding Securities to be due and payable immediately and, upon any such
declaration, such principal amount and accrued interest shall become immediately
due and payable.
If an Event of Default specified in clause (g) or (h) of Section 5.1
with respect to the Company occurs all unpaid principal of and accrued interest
on the outstanding Securities shall ipso facto become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder thereof.
43
After a declaration of acceleration, but before a judgment or decree
or payment of the money due in respect of the Securities has been obtained, the
Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding by written notice to the Trustee may rescind and
annul an acceleration and its consequences if all existing Events of Default
(other than the nonpayment of principal of and interest on the Securities which
has become due solely by virtue of such acceleration) have been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any Security
or interest coupon, if any, when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including all amounts due the
Trustee, its agents and counsel under Section 6.7.
If the Company or any Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company, any Guarantor, or any other obligor
upon the Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, any Guarantor or
any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any agreement in this Indenture or in aid of the exercise of any power granted
herein, or to secure any other proper remedy, subject, however, to Section 5.8.
Section 5.4 Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any Guarantor
or its creditors), the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and
44
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due 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 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
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vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Senior Subordinated Guarantee may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6 Delay or Omission Not Waiver. No delay or omission by
the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7 Waiver of Past Defaults. The Holders of not less than
a majority in aggregate principal amount of Outstanding Securities of any series
by written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series and any interest coupons appertaining thereto a past
Default or Event of Default with respect to that series and its consequences
except a Default or Event of Default (i) in the payment of the principal of,
premium, if any, or interest on any Security of such series or any interest
coupon appertaining thereto or (ii) in respect of an agreement or provision
hereof which pursuant to Article 8 cannot be amended or modified without the
consent of the Holder of each Outstanding Security of such series affected.
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 impair any right consequent thereon.
Section 5.8 Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting
45
any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it with respect to Securities of that series;
provided, however, that (i) the Trustee may refuse to follow any direction that
-------- -------
conflicts with any governmental rule or law or this Indenture, (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting, or that would in the
good faith judgment of the Trustee have a substantial likelihood of involving
the Trustee in personal liability without adequate indemnity having been offered
therefor and (iii) subject to Section 6.1, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be,
or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such written
request;
provided, however, that the limitations contained in (a) through (e)
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of this Section do not apply to any suit by a Holder of any Security for
enforcement of payment of the principal of (and premium, if any) or interest on
such Security on or after the respective due date expressed in such Security.
No one or more Holders of Securities of a series shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
8.2, each of the right of any Holder of a Security or interest coupon to receive
payment of principal of premium, if any, and, subject to
46
Sections 3.5 and 3.7, interest on the Security, on or after the respective due
dates expressed in the Security (or, in case of redemption or a required
repurchase by the Company under the terms of the relevant Securities, on the
Redemption Dates or specified repurchase dates), the right of any Holder of an
interest coupon to receive payment of interest due as provided in such interest
coupon, or to bring suit for the enforcement of any such payment on or after
such respective dates, and the right, if any, to convert or exchange such
Security in accordance with Article 14, is unconditional and shall not be
impaired or affected without the consent of such Holder.
Section 5.11 Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect of
which or for the benefit of which such money has been collected for amounts
due and unpaid on such Securities for principal of, premium, if any, and
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal, premium, if
any, and interest, respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU, any other
currency unit or a Foreign Currency and any matured interest coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined
by the Trustee by converting the principal amount Outstanding of such series of
Securities and matured but unpaid interest on such series of Securities in the
currency in which such series of Securities is denominated into Dollars at the
Market Exchange Rate as of the date of declaration of acceleration of Maturity
of the Securities (or, if the default consists of a failure to pay the principal
of such Securities on the Stated Maturity thereof, as of the Stated Maturity
date).
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
Section 5.12 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
47
Section 5.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14 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, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
-------- -------
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or any Guarantor, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of the Outstanding Securities of the relevant series or
in any suit instituted by any Holder for the enforcement of principal of,
premium, if any, or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or any
required repurchase by the Company, on or after the Redemption Date or specified
repurchase date).
Section 5.15 Waiver of Stay, Extension or Usury Laws. Each of the
Company and the Guarantors agrees (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury or other law wherever enacted, now or at any time hereafter in force,
which would prohibit or forgive the Company from paying all or any portion of
the principal of, and premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the agreements or
the performance of this Indenture or prohibit or forgive any Guarantor from
performance under its Senior Subordinated Guarantee; and each of the Company and
the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and agrees 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 5.16 Conduct of Trustee. In the case an Event of Default
occurs and is continuing, the Trustee will be required, in the exercise of is
power, to use the degree of care of a prudent person in the conduct of his or
her own affairs.
ARTICLE 6.
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own
48
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults. The Trustee shall, within 30 days
after the occurrence of any Default or Event of Default with respect to the
Securities, give the Holders thereof notice of all uncured Defaults or Events of
Default known to it; provided, however, that, except in the case of an Event of
-------- -------
Default in payment with respect to the Securities of a Default or Event of
Default in complying with any additional covenants contemplated by Section 3.1
with respect to Securities of that series and Section 7.1 hereunder, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors or responsible officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders.
Section 6.3 Certain Rights of Trustee. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness
49
or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have no
duty to inquire as to the performance by the Company or any Guarantor of
the agreements set forth in Article 9 beyond its good faith review of any
certificates or other notices received by it from the Company or any
Guarantor.
Section 6.4 Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Senior Subordinated Guarantees endorsed thereon, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Senior Subordinated Guarantees endorsed
thereon. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, any Guarantor or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to the definition of
"Outstanding" set forth in Section 1.1 and subject to Sections 6.8 and 6.13, may
otherwise deal with the Company, any Guarantor and any other obligor upon the
Securities and the Senior Subordinated Guarantees with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
Section 6.7 Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or
50
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the 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.
To secure the Company's payment obligations in this Section 6.7, the
Trustee shall have a Lien prior to the Securities against all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(g) or (h) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 6.7 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article 17 and any rejection or termination under any Bankruptcy Law.
Section 6.8 Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest within 90 days, apply to the
Commission for permission to continue, or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by such Act, the Trustee shall not
be deemed to have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series or a trustee under
any other indenture specified in (A) a Board Resolution, (B) an action taken
pursuant to a Board Resolution and (subject to Section 3.3) set forth in an
Officers' Certificate or (C) one or more indentures supplemental hereto.
Section 6.9 Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, has a combined capital and
surplus of at least $25,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
51
Section 6.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of
52
Section 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series. The Company shall give notice of each
resignation and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company, the Guarantors and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantors, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, any Guarantor or any
successor
53
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the
Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
--------
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company or any
Guarantor (or any other obligor upon the Securities or the Senior Subordinated
Guarantees endorsed thereon), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any Guarantor or any such other obligor).
Section 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated and the Senior Subordinated
Guarantees endorsed thereon shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $25,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or
54
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
--------
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities with the Senior Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the within-
mentioned Indenture.
____________________________
As Trustee
By:_________________________
As Authenticating Agent
55
By:_________________________
Authorized Signatory
ARTICLE 7.
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets Permitted.
The Company (a) shall not consolidate with or merge into any Person; (b) shall
not permit any Person other than a Restricted Subsidiary to consolidate with or
merge into the Company or; (c) shall not, directly or indirectly, in one or a
series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless in any such transaction (or series)
contemplated by Clause (a), (b) or (c) above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of such properties and assets as an entirety, the Person
formed by such consolidation or into which the Company is merged or the
Person which acquires by transfer, conveyance, sale, lease or other
disposition all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis (for purposes of this
Article 7, a "Successor Company") shall be a corporation, partnership,
limited liability company or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume by an indenture
supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of, premium, if any, and interest on all the Securities and the performance
of every agreement of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to such consolidation, merger,
sale, transfer, lease or other disposition, no Default or Event of Default
shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company satisfies
such other conditions, if any, established with respect to such series of
Securities pursuant to and in accordance with Section 3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
56
Section 7.2 Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of the Company and its Subsidiaries on a consolidated
basis, in each case in accordance with Section 7.1, the Successor Company shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture and under the Securities and any interest
coupons appertaining thereto with the same effect as if such Successor Company
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person (if still in existence) shall be relieved of all
obligations and agreements under this Indenture and the Securities and any
interest coupons appertaining thereto.
ARTICLE 8.
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, the Guarantors and the Trustee,
at any time and from time to time, may enter into indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the agreements and obligations of
the Company or any Guarantor herein and in the Securities and any interest
coupons appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of the
Holders of all or any series of Securities (and if such agreements are to
be for the benefit of less than all series of Securities, stating that such
agreements are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with respect to all or
any series of Securities; or
(d) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only) or
to facilitate the issuance or administration of Global Securities; or
(e) to change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
--------
change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(f) to secure any series of Securities; or
57
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the
States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal of,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to make
any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
--------
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange rights
of Holders pursuant to the requirements of Article 14; or
(l) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act.
Section 8.2 Supplemental Indentures with Consent of Holders.
Subject to Section 5.10, the Company and the Guarantors, when authorized by a
resolution of their respective Boards of Directors, and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of a majority in principal amount of the outstanding Securities.
Subject to Section 5.10, the Holders of a majority in principal amount of the
outstanding Securities may waive compliance by the Company or any Guarantor with
any provision of this Indenture or the Securities. However, without the consent
of each Holder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 5.7, may not:
(a) change the Stated Maturity of the principal of or any
installment of interest on any Security or alter the optional redemption or
repurchase provisions of any Security or this Indenture in a manner adverse
to the holders of the Securities;
(b) reduce the principal amount of any Security;
58
(c) reduce the rate or extend the time for payment of interest on
any Security;
(d) change the place or currency of payment of the principal of (or
premium) or interest on any Security;
(e) modify any provisions of Section 5.7 (other than to add
sections of this Indenture or the Securities subject thereto) or 5.10 or
this Section 8.2 (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without the
consent of each Holder affected);
(f) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default;
(g) waive a default in the payment of the principal of, interest
on, Liquidated Damages on, or redemption payment with respect to, any
Security (except a recission of acceleration of the Securities by the
Holders as provided in Section 5.2 and a waiver of the payment default that
resulted from such acceleration);
(h) modify the ranking or priority of the Securities or the
Guarantee of any Guarantor, or modify the definition of Senior Indebtedness
or Guarantor Senior Indebtedness, or amend or modify any of the provisions
of Article 17 in any manner adverse to the Holders; or
(i) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with this
Indenture.
An amendment under this Section 8.2 may not make any change under
Article 4, Article 15 or, Article 17 hereof that adversely affects in any
material respect the rights of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any
representative thereof authorized to give a consent) shall have consented to
such change.
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.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 8.3 Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more series shall be set forth in
a supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.4 Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the
59
modification thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.5 Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities including any
interest coupons of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any interest coupons of such series.
Section 8.7 Notice of Supplemental Indentures. Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 8.2, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 1.6, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
ARTICLE 9.
AGREEMENTS
Section 9.1 Payment of Principal, Premium, if Any, and Interest.
The Company agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of, premium, if any, and
interest, together with additional amounts, if any, on the Securities of that
series in accordance with the terms of the Securities of such series, any
interest coupons appertaining thereto and this Indenture; provided, however,
-------- -------
that amounts properly withheld under the Internal Revenue Code of 1986, as
amended, by any Person from a payment to any Holder of Securities, after having
requested such Holder to provide applicable information that would allow such
Person to make such payment without withholding, shall be considered as having
been paid by the Company to such Holder for purposes of this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date it is due if there shall have been sent to the Trustee or Paying
Agent by wire transfer,
60
received by no later than the close of business on such due date, or if the
Trustee or Paying Agent otherwise holds, on that date money designated for and
sufficient to pay the installment.
Section 9.2 Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange or conversion and where
notices and demands to or upon the Company or any Guarantor in respect of the
Securities or the Senior Subordinated Guarantees of that series and this
Indenture may be served. Unless otherwise specified as contemplated by Section
3.1, if Securities of a series are issuable as Bearer Securities, the Company
will maintain (i) subject to any laws or regulations applicable thereto, an
office or agency in a Place of Payment for that series which is located outside
the United States where Securities of that series and related interest coupons
may be presented and surrendered for payment; provided, however, that if the
-------- -------
Securities of that series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a Place of Payment for
that series which is located outside the United States, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and each Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
-------- -------
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the Company
may also from time to time designate one or more other offices or agencies where
the Securities (including any interest coupons, if any) of one or more series
may be presented or surrendered
61
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities (including any interest coupons, if any)
of any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1, the Trustee
shall initially serve as Paying Agent.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any interest coupons appertaining
thereto, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of
that series; and
(d) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any
62
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the terms set forth
in this Indenture; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal of or premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
-------- -------
Trustee or such Paying Agent, before being required to make any such repayment,
may in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.4 Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
--------
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
Section 9.5 Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of the
Company, a certificate from the principal executive officer, principal financial
officer, treasurer or principal accounting officer of the Company stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under his or her supervision and to the best
of his or her knowledge, based on such review, each of the Company and the
Guarantors has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him or her and the nature and
status thereof. For purposes of this Section 9.5, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
The Company shall deliver to the Trustee, as soon as possible and in
any event within 30 days after the Company becomes aware of the occurrence of an
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or Default, and the action which the Company
proposes to take with respect thereto.
Section 9.6 Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained
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and kept in good condition, repair and working order, normal wear and tear
excepted, and supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 9.6
-------- -------
shall prevent the Company from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposition is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary.
Section 9.7 Payments of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, in any case described in (1) or (2) above, if
unpaid, might by law become a material lien upon the property of the Company or
any Subsidiary; provided, however, that the Company shall not be required to pay
-------- -------
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings, or for which adequate reserves have been
established.
Section 9.8 Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any agreement provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 10.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1 Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date for any series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities
of such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content
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for any or all series as of a date not more than 15 days prior to the time
such list is furnished;
excluding, from any such list names and addresses possessed by the Trustee in
its capacity as Registrar.
Section 10.2 Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.1 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Registrar. The Trustee
may destroy any list furnished to it as provided in Section 10.1 upon receipt of
a new list so furnished.
(a) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(b) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, the Guarantors nor the Trustee nor any agent
of any of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders of Securities made
pursuant to the Trust Indenture Act.
Section 10.3 Reports by Trustee. (a) The Trustee shall transmit
to Holders of Securities such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act, at
the times and in the manner provided pursuant thereto.
(a) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(b) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notifying the Trustee whenever the
Securities of any series are listed on any stock exchange.
Section 10.4 Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
--------
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Notwithstanding anything contrary herein, the Trustee
shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
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ARTICLE 11.
REDEMPTION
Section 11.1 Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities, including interest coupons, if any,
that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3 Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, selection of Securities for
any partial redemption shall be made by the Trustee, in accordance with the
rules of any national securities exchange on which the Securities may be listed
or, if the Securities are not so listed, pro rata or by lot or in such manner as
--- ----
the Trustee shall deem appropriate and fair. Securities in denominations larger
than $1,000 may be redeemed in part but only in integral multiples of $1,000.
On and after the date fixed for redemption, interest will cease to accrue on the
Securities or portions thereof called for redemption.
Section 11.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be
redeemed;
66
(d) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing on or after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the Redemption
Date or the amount of any such missing interest coupon or interest coupons
will be deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions thereof
to be redeemed) will terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the expense of
the Company.
Section 11.5 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption obligation
from being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting of an amount equal to the
then applicable Redemption Price for such Securities against such payment
obligation in accordance with the terms of such Securities and this Indenture.
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Section 11.6 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
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Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of interest coupons for such interest; and provided further, that, unless
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otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest Payment Dates that
are on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
-------- -------
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Senior Subordinated Guarantee of each Guarantor executed by each
such Guarantor and endorsed thereon) of the same series, having the same form,
terms and Stated Maturity, in any
68
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
ARTICLE 12.
SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
--------
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
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ARTICLE 13.
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1 Purposes for Which Meetings May Be Called. A meeting
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, election, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 13.2 Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 13.1 to be held at such time and at such place in
The City of New York or in such other place as may be acceptable to the Company.
Notice of every meeting of Holders of Securities, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 1.6, not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
(a) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3 Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of any series, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 13.4 Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
-------- -------
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
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reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 8.2, any
-------- -------
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section 13.4 shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 13.4, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(1) there shall be no minimum quorum requirement for such meeting and
(2) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 13.5 Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other
71
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be provided in the manner specified in Section
1.4 or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.4 or other proof.
(a) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(b) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount of
Securities held or represented by him or her; provided, however, that no vote
-------- -------
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(c) Any meeting of Holders of Securities of a series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6 Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be presented by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
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ARTICLE 14.
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1 Applicability of Article. The provisions of this
Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Interests of the Company, and to the
issuance of such Equity Interests upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
Section 14.2 Exercise of Conversion or Exchange Privilege. (a)
In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto, to the
Company at the office or agency maintained for that purpose pursuant to Section
9.2, accompanied by written notice to the Company that the Holder elects to
convert or exchange such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of such Holder, the
name or names (with address) in which the certificate or certificates for Equity
Interests which shall be issuable on such conversion or exchange shall be
issued. Registered Securities surrendered for conversion or exchange shall (if
so required by the Company or the Trustee) be duly endorsed by or accompanied by
instruments of transfer in forms satisfactory to the Company and the Trustee
duly executed by the registered Holder or its attorney duly authorized in
writing.
(a) As promptly as practicable after the receipt of such notice and
of any payment required pursuant to a Board Resolution establishing the terms of
any series of Securities and, subject to Section 3.3, set forth, or determined
in the manner provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such reasonable
regulations as the Company may prescribe. The Company shall issue and shall
deliver, at the office or agency at which such Security is surrendered, to such
Holder or on its written order, a certificate or certificates for the number of
Equity Interests issuable upon the conversion or exchange of such Security (or
specified portion thereof), in accordance with the provisions of such Board
Resolution, Officers' Certificate or supplemental indenture, and cash as
provided therein in respect of any fractional share of such Equity Interest
otherwise issuable upon such conversion or exchange.
(b) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by the Company and such Security shall have been
surrendered as aforesaid and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for Equity Interests of the
Company shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Interests represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for
73
conversion or exchange, or on account of any dividends on the Equity Interests
of the Company issued upon such conversion or exchange if the record date for
the payment of such dividends occurs prior to or on the date on which such
conversion or exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in part
only, upon such conversion or exchange the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
or unexchanged portion of such Security.
Any requirements for notice, surrender or delivery of Securities
pursuant to this Article Fourteen shall, with respect to any Global Security, be
subject to any Applicable Procedures.
Section 14.3 No Fractional Equity Interests. No fractional Equity
Interest of the Company shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Interest which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Interest of the
Company upon the conversion or exchange of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (i) if
such Equity Interest is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Interest is listed or
admitted, on the last trading day prior to the date of conversion or exchange
upon which such a sale shall have been effected, (ii) if such Equity Interest is
not at the time so listed or admitted on a national securities exchange but is
quoted on the National Market System of the National Association of Securities
Dealers, Inc. ("Nasdaq"), on the basis of the average of the last bid and asked
prices of such Equity Interest on Nasdaq on the last trading day prior to the
date of conversion or exchange, (iii) if such Equity Interest is not at the time
so listed or admitted to unlisted trading privileges on a national securities
exchange or quoted on Nasdaq, on the basis of the average of the last bid and
asked prices of such Equity Interest in the over-the-counter market, on the last
trading day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the National
Quotation Bureau Incorporated is no longer reporting such information, or (iv)
in accordance with the terms of the supplemental indenture or Board Resolutions
setting the terms of the Securities of such series. For purposes of this
Section, "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which the applicable Equity Interest is not traded
or quoted on a national securities exchange, or if the applicable Equity
Interest is not traded or quoted on a national securities exchange, on Nasdaq or
the principal exchange or market on which the applicable Equity Interest is
traded or quoted.
Section 14.4 Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or
74
exchangeable into an Equity Interest of the Company shall be adjusted for any
stock dividends, stock splits, reclassifications, combinations or similar
transactions, and the securities, assets or other property into or for which
such Securities may be converted or exchanged as a result of any consolidation,
merger, combination or similar transaction shall be determined, in accordance
with the terms of the supplemental indenture or Board Resolutions setting the
terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, the Company
shall compute the adjusted conversion or exchange price in accordance with the
terms of the applicable Board Resolution or supplemental indenture and shall
prepare an Officers' Certificate setting forth the adjusted conversion or
exchange price and showing in reasonable detail the facts upon which such
adjustment is based. Whenever the securities, assets or other property into or
for which Securities of any series may be converted or exchanged are changed as
a result of any consolidation, merger or similar transaction, the Company shall
determine the nature and amount of such securities, assets or other property in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate describing such securities,
assets or other property and stating the amount of such securities, assets or
other property into or for which such Securities have become convertible or
exchangeable. Such certificates shall forthwith be filed at each office or
agency maintained for the purpose of conversion or exchange of Securities
pursuant to Section 9.2 and, if different, with the Trustee and the Company
shall forthwith cause a notice setting forth the adjusted conversion or exchange
price or describing such securities, assets or other property, as applicable, to
be mailed, first-class postage prepaid, to each Holder of Registered Securities
of such series at its address appearing on the Register and to any conversion or
exchange agent other than the Trustee and shall give notice to the Holder of
Bearer Securities as provided in 1.6.
Section 14.5 Notice of Certain Corporate Actions. If any series of
Securities which are directly or indirectly convertible or exchangeable for any
Equity Interests are Outstanding, in case:
(a) the Company shall declare a dividend (or any other
distribution) on any class of such Equity Interests (i) payable otherwise
than exclusively in cash out of its retained earnings, or (ii) exclusively
in cash out of its retained earnings in an amount that, under the terms of
such Securities, would require an adjustment in the exchange or conversion
price of such Securities; or
(b) the Company shall authorize the granting to the holders of any
class of such Equity Interests of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any other
rights; or
(c) of any reclassification of any class of such Equity Interests
(other than a subdivision or combination of its outstanding shares of such
Equity Interests), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is
required, or of the sale of all or substantially all of the assets of the
Company; or
75
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of such Equity Interests (or shall amend any such tender or exchange
offer);
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their addresses as they shall appear in the Register
and shall give notice to the Holder of Bearer Securities as provided in Section
1.6, at least 20 days (or 10 days in any case specified in clause (a) or (b)
above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Interests of record to
be entitled to such dividend, distribution, rights, options or warrants are to
be determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
such Equity Interests of record shall be entitled to exchange such Equity
Interests for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up or (iii) the date on which such tender or exchange
offer commenced, the date on which such tender or exchange offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). If at any time the
Trustee shall not be the conversion or exchange agent, a copy of such notice
shall also forthwith be filed by the Company with the Trustee.
Section 14.6 Reservation of Equity Interests. The Company shall at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Interests, solely for the purpose of effecting
the conversion or exchange of Securities, the full number of Equity Interests of
the Company then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7 Payment of Certain Taxes Upon Conversion or Exchange.
The Company will pay any and all taxes that may be payable in respect of the
issue or delivery of the Company's Equity Interests on conversion or exchange of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of its Equity Interests in a name other than that of the Holder of
the Security or Securities to be converted or exchanged, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 14.8 Duties of Trustee Regarding Conversion or Exchange.
Neither the Trustee nor any conversion or exchange agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible or exchangeable into Equity Interests of the Company to determine
whether any facts exist which may require any adjustment of the conversion or
exchange price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, whether herein or in any
76
supplemental indenture, any resolutions of the Board of Directors or written
instrument executed by one or more officers of the Company provided to be
employed in making the same. Neither the Trustee nor any conversion or exchange
agent shall be accountable with respect to the validity or value (or the kind or
amount) of any Equity Interests of the Company, or of any securities or
property, which may at any time be issued or delivered upon the conversion or
exchange of any Securities and neither the Trustee nor any conversion or
exchange agent makes any representation with respect thereto. Subject to the
provisions of Section 6.1, neither the Trustee nor any conversion or exchange
agent shall be responsible for any failure of the Company to issue, transfer or
deliver any of the Company's Equity Interests or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion or exchange or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.
Section 14.9 Repayment of Certain Funds Upon Conversion or Exchange.
Any funds which at any time have been deposited by the Company or on its behalf
with the Trustee or any Paying Agent for the purpose of paying the principal of,
premium, if any, and interest, if any, on any of the Securities (including funds
deposited for redemption pursuant to Article 11 or for any sinking fund referred
to in Article 12 hereof) and which shall not be required for such purposes
because of the conversion or exchange of such Securities as provided in this
Article 14 shall after such conversion or exchange be repaid to the Company by
the Trustee upon the Company's written request by Company Request.
ARTICLE 15.
SENIOR SUBORDINATED GUARANTEE
Section 15.1 Unconditional Guarantee. Each Guarantor hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns that: the principal of and interest on the Securities will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise, and interest on the overdue principal
and interest on any overdue interest on the Securities and all other obligations
of the Company to the Holders or the Trustee hereunder or under the Securities
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; subject, however, to the limitations set forth in Section
15.4. Each Guarantor hereby agrees that its 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 the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of 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 the Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture, and
this Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar
77
official acting in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, 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 5 for
the purpose of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 5, such obligations (whether or not due and payable)
shall forth become due and payable by each Guarantor for the purpose of this
Guarantee.
Section 15.2 Severability
. In case any provision of this Guarantee shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 15.3 Release of a Guarantor
. If any Guarantor is released from its guarantee and all other
obligations (including any Liens) in respect of the Revolving Credit Facility or
if the Securities are defeased in accordance with the terms of this Indenture,
then such Guarantor shall be deemed released from all obligations under this
Article 15 without any further action required on the part of the Trustee or any
Holder. The Trustee shall, at the sole cost and expense of the Company and upon
receipt at the reasonable request of the Trustee of an Opinion of Counsel that
the provisions of this Section 15.3 have been complied with, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section. Any Guarantor not so released remains liable for the full
amount of principal of and interest on the Securities and the other obligations
of the Company hereunder as provided in this Article 15.
Section 15.4 Limitation of Guarantor's Liability. Each Guarantor,
and by its acceptance hereof each Holder and the Trustee, hereby confirms that
it is the intention of all such parties that the guarantee by such Guarantor
pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for
purposes of Title 11 of the United States Code, as amended, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
U.S. Federal or state or other applicable law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under the Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
15.5, result in the obligations of such Guarantor under the Guarantee not
constituting such fraudulent transfer or conveyance.
Section 15.5 Contribution. In order to provide for just and
equitable contribution among the Guarantors, the Guarantors agree, inter se,
that in the event any payment or distribution is made by any Guarantor (a
"Funding Guarantor") under the Guarantee, such
-----------------
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Funding Guarantor shall be entitled to a contribution from all other Guarantors
in a pro rata amount, based on the net assets of each Guarantor (including the
Funding Guarantor), determined in accordance with GAAP, subject to Section 15.4,
for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company's obligations with respect to the Securities or any
other Guarantor's obligations with respect to the Guarantee.
Section 15.6 Execution of Guarantee. To further evidence their
Guarantee to the Holders, the Guarantors hereby agree to execute the Guarantee
in substantially the form set forth in Section 2.3 hereto to be endorsed on each
Security ordered to be authenticated and delivered by the Trustee. Each
Guarantor hereby agrees that its Guarantee set forth in Section 15.1 shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee. Each such Guarantee shall be signed on
behalf of each Guarantor by its Chairman of the Board, its President or one of
its Vice Presidents prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signature upon the Guarantee may be
manual or facsimile signature of such officer and may be imprinted or otherwise
reproduced on the Guarantee, and in case such officer who shall have signed the
Guarantee shall cease to be such officer before the Security on which such
Guarantee is endorsed shall have been authenticated and delivered by the Trustee
or disposed of by the Company, such Security nevertheless may be authenticated
and delivered or disposed of as though the Person who signed the Guarantee had
not ceased to be such officer of the Guarantor.
Section 15.7 Additional Guarantors. The Company shall cause each
Restricted Subsidiary which guarantees or otherwise provides credit support
(pursuant to the grant of a security interest or otherwise) for any obligation
of the Company or any of its Subsidiaries under the Revolving Credit Facility
and each future Restricted Subsidiary that guarantees or otherwise provides
credit support (pursuant to the grant of a security interest or otherwise) for
any obligation of the Company or any of its Subsidiaries under the Revolving
Credit Facility will become a Guarantor of the Securities; provided, however,
that any Restricted Subsidiary acquired after the Issue Date which is prohibited
from entering into a Guarantee pursuant to restrictions contained in any debt
instrument or other agreement in existence at the time such Restricted
Subsidiary was so acquired and not entered into in anticipation or contemplation
of such acquisition shall not be required to comply with the foregoing
provisions of this Section so long as any such restriction is in existence and
to the extent of any such restriction.
Section 15.8 Subordination of Subrogation and Other Rights. Each
Guarantor hereby agrees that any claim against the Company that arises from the
payment, performance or enforcement of such Guarantor's obligations under its
Guarantee or this Indenture, including, without limitation, any right of
subrogation, shall be subject and subordinate to, and no payment with respect to
any such claim of such Guarantor shall be made before, the payment in full in
cash of all outstanding Securities in accordance with the provisions provided
therefor in this Indenture.
Section 15.9 Subordination of Guarantee. The Obligations of each
Guarantor under its Guarantee are junior and subordinated to the prior payment
in full of all Guarantor Senior Indebtedness of such Guarantor in the same
fashion and to the same extent as the
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Securities are junior and subordinated to Senior Indebtedness of the Company
pursuant to this Indenture, including Article 17. For the purposes of the
foregoing sentence, the Trustee and the Holders (i) shall have the right to
receive and/or retain payments by, or other distributions of or in respect of
the assets of, any of the Guarantors only under the same circumstances and at
such times as they may receive and/or retain payments in respect of the
Securities pursuant to this Indenture, including Article 17, and (ii) with
respect to such Guarantees, shall be subject to all provisions of Article 17 as
if such provisions specifically applied to the Guarantees as well as the
Securities.
ARTICLE 16.
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 16.1 Jurisdiction and Consent to Service of Process. (a)
Each of the Company and the Guarantors hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to the Securities, the Senior Subordinated
Guarantees, this Indenture, or for recognition or enforcement of any judgment,
and each of such Persons hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the Company and the Guarantors agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Article 16 shall affect any right that any Holder or the Trustee
may otherwise have to bring any action or proceeding relating to the Securities,
the Senior Subordinated Guarantees, this Indenture Agreement against the
Company, any Guarantor or their respective properties in the courts of any
jurisdiction.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to the Securities, the
Senior Subordinated Guarantees or this Indenture in any New York State or
Federal court. Each of the Company and the Guarantors hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(b) Each of the Company and the Guarantors irrevocably consents to
service of process in the manner provided for notices in Section 1.5. Nothing
in this Agreement will affect the right of any Holder or the Trustee to serve
process in any other manner permitted by law.
ARTICLE 17.
SUBORDINcATION OF SECURITIES
Section 17.1 Securities Subordinated to Senior Indebtedness.
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The Company covenants and agrees, and the Trustee and each Holder of
the Securities by his or her acceptance thereof likewise covenant and agree,
that all Securities shall be issued subject to the provisions of this Article;
and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of the principal of and interest on the Securities by the Company shall, to the
extent and in the manner set forth in this Article, be subordinated and junior
in right of payment to the prior payment in full of all amounts payable under
all Senior Indebtedness.
Section 17.2 No Payment on Securities in Certain Circumstances.
(a) No direct or indirect payment by or on behalf of the Company of
principal of or interest on the Securities, whether pursuant to the terms of the
Securities, upon acceleration or otherwise, shall be made if, at the time of
such payment, there exists a default in the payment of all or any portion of the
obligations on any Designated Senior Indebtedness, whether at maturity, on
account of mandatory redemption or prepayment, acceleration or otherwise (and
the Trustee has received written notice thereof), and such default shall not
have been cured or waived or the benefits of this sentence waived by or on
behalf of the holders of such Designated Senior Indebtedness. In addition,
during the continuance of any non-payment default or non-payment event of
default with respect to any Designated Senior Indebtedness pursuant to which the
maturity thereof may be accelerated, and upon receipt by the Trustee of written
notice (a "Payment Blockage Notice") from the holder or holders of such
Designated Senior Indebtedness or the trustee or agent acting on behalf of such
Designated Senior Indebtedness, then, unless and until such default or event of
default has been cured or waived or has ceased to exist or such Designated
Senior Indebtedness has been discharged or repaid in full, no direct or indirect
payment shall be made by or on behalf of the Company of principal of or interest
on the Securities, except from those funds held in trust for the benefit of the
Holders of any Securities to such Holders, during a period (a "Payment Blockage
Period") commencing on the date of receipt of such notice by the Trustee and
ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the contrary,
(x) in no event shall a Payment Blockage Period extend beyond 179 days from the
date the Payment Blockage Notice in respect thereof was given and (y) in no
event shall a Payment Blockage Notice be effective for purposes of this Section
17.2(a) unless and until 360 days shall have elapsed since the effectiveness of
the immediately prior Payment Blockage Notice. Not more than one Payment
Blockage Period may be commenced with respect to the Securities during any
period of 360 consecutive days. No default or event of default that existed or
was continuing on the date of commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness initiating such Payment Blockage
Period may be, or be made, the basis for the commencement of any other Payment
Blockage Period by the holder or holders of such Designated Senior Indebtedness
or the trustee or agent acting on behalf of such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such default or
event of default has been cured or waived for a period of not less than 90
consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 17.2(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Designated Senior
Indebtedness or their respective representatives, or to the trustee or
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trustees under any indenture pursuant to which any of such Designated Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that, upon notice from the Trustee to the holders of
Designated Senior Indebtedness that such prohibited payment has been made, the
holders of the Designated Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing of the amounts then
due and owing on the Designated Senior Indebtedness, if any, and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Designated Senior Indebtedness.
Section 17.3 Payment Over of Proceeds upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, upon
any dissolution or winding-up or total or partial liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due with respect
to Senior Indebtedness shall first be paid in full before the Holders of the
Securities or the Trustee on behalf of such Holders shall be entitled to receive
any payment by the Company of the principal of or interest on the Securities, or
any payment to acquire any of the Securities for cash, property or securities,
or any distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by, or on behalf of, the Company of
the principal of or interest on the Securities upon any such dissolution or
winding-up or liquidation or reorganization, any payment or distribution of
assets or securities of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Securities or the Trustee on
their behalf would be entitled, but for the subordination provisions of this
Indenture, shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Indebtedness (pro rata to
--- ----
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders) or their representatives or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to pay
all such Senior Indebtedness in full after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder of Securities at a
time when such payment or distribution is prohibited by Section 17.3(a) and
before all obligations in respect of Senior Indebtedness are paid in full, or
payment provided for, such payment or distribution shall be received and held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
--- ----
amounts of Senior Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full after
giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Indebtedness.
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(c) For purposes of this Section, the words "cash, property or
securities" shall not be deemed to include, so long as the effect of these
clauses (x) and (y) is not to cause the Securities to be treated in any case or
proceeding or similar event described in this Section as part of the same class
of claims as the Senior Indebtedness or any class of claims on a parity with or
senior to the Senior Indebtedness for any payment or distribution, (x) any
payment or distribution of securities of the Company or any other corporation
authorized by an order or decree giving effect, and stating in such order or
decree that effect is given, to the subordination of the Securities to the
Senior Indebtedness, and made by a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy, insolvency or other
similar law, or (y) securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment which are subordinated, to at
least the same extent as the Securities, to the payment of all Senior
Indebtedness then outstanding (the securities described in clauses (x) and (y)
being hereinafter referred to as "Subordinated Reorganization Securities");
--------------------------------------
provided, however, that (i) if a new corporation results from such
-------- -------
reorganization or readjustment, such corporation assumes the Senior Indebtedness
and (ii) the rights of the holders of the Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article 7 shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 7.
Section 17.4 Subrogation.
Upon the payment in full of all Senior Indebtedness, or provision for
payment, the Holders of the Securities shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such Senior Indebtedness until the
principal of and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee on their behalf would be entitled except for the
provisions of this Article, and no payment over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee on their behalf shall, as between the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Indebtedness,
on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article shall
have been applied, pursuant to the provisions of this Article, to the payment of
all amounts payable under Senior Indebtedness, then and in such case, the
Holders of the Securities shall be entitled to receive
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from the holders of such Senior Indebtedness any payments or distributions
received by such holders of Senior Indebtedness in excess of the amount required
to make payment in full, or provision for payment, of such Senior Indebtedness.
Section 17.5 Obligations of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Holder of any Security or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of the Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable
prior to their stated maturity pursuant to Section 5.1 or to pursue any rights
or remedies hereunder; provided, however, that all Senior Indebtedness then due
and payable shall first be paid in full before the Holders of the Securities or
the Trustee are entitled to receive any direct or indirect payment from the
Company of principal of or interest on the Securities.
Section 17.6 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities pursuant to the provisions of this
Article. The Trustee shall not be charged with knowledge of the existence of any
default or event of default with respect to any Senior Indebtedness or of any
other facts which would prohibit the making of any payment to or by the Trustee
unless and until the Trustee shall have received notice in writing at its
Corporate Trust Office to that effect signed by an Officer of the Company, or by
a holder of Senior Indebtedness or trustee or agent therefor; and prior to the
receipt of any such written notice, the Trustee shall, subject to Article 6, be
entitled to assume that no such facts exist; provided that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms of this Indenture any moneys
shall become payable for any purpose (including, without limitation, the payment
of the principal of or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 17.6 shall limit the right of the holders of Senior
Indebtedness to recover payments as contemplated by Section 17.3. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself or itself to be a holder of any Senior Indebtedness (or a
trustee on behalf of,
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or other representative of, such holder) to establish that such notice has been
given by a holder of such Senior Indebtedness or a trustee or representative on
behalf of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, 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.
Section 17.7 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets or securities referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
Section 17.8 Trustee's Relation to Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee or any Paying Agent of any of its rights as such
holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness (except as provided in
Section 17.3(b)).
Section 17.9 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged
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with. The provisions of this Article are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness.
Section 17.10 Holders Authorize Trustee To Effectuate Subordination
of Securities.
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its or his
Securities in the form required in those proceedings.
Section 17.11 This Article Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article shall not be
construed as preventing the occurrence of an Event of Default specified in
clause (1) or (2) of Section 5.1.
Section 17.12 Trustee's Compensation Not Prejudiced.
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
Section 17.13 No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 17.9, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 17.14 Subordination Provisions Not Applicable to Money
Held in Trust for Holders; Payments May Be Paid Prior to Dissolution.
All money and U.S. Government Obligations deposited in trust with the
Trustee pursuant to and in accordance with Article 4 shall be for the sole
benefit of the Holders and shall not be subject to this Article 17.
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Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section 17.2,
from making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments or from effecting a
termination of the Company's and the Guarantors' obligations under the
Securities and the Indenture as provided in Article 4, or (ii) the application
by the Trustee of any moneys deposited with it for the purpose of making such
payments of principal of and interest on the Securities, to the holders entitled
thereto unless at least two Business Days prior to the date upon which such
payment becomes due and payable, the Trustee shall have received the written
notice provided for in Section 17.2(b) or in Section 17.6. The Company shall
give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
Section 17.15 Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of the Senior Indebtedness of
the acceleration.
ARTICLE 18.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 18.1 Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 18.2 or 18.3 hereof be applied to all outstanding Securities
and all outstanding Security Guarantees upon compliance with the conditions set
forth below in this Article 18.
Section 18.2 Legal Defeasance and Discharge. Upon the Company's
exercise under Section 18.1 hereof of the option applicable to this Section
18.2, the Company shall, subject to the satisfaction of the conditions set forth
in Section 18.4 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Securities and the Guarantors shall, subject the
satisfaction of the conditions set forth in Section 18.4 hereof, be deemed to
have been discharged from their obligations with respect o all outstanding
Security Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means
----------------
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities and the Guarantors shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Security Guarantees, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 18.5 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Securities and Security
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Securities to
receive solely from the trust fund described in Section 18.4 hereof, and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest and Liquidated Damages, if any, on such Securities
when such payments are due, (b) the Company's obligations with respect to such
Securities under Article 3
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and Section 9.2 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection therewith and
(d) this Article 18. Subject to compliance with this Article 18, the Company may
exercise its option under this Section 18.2 notwithstanding the prior exercise
of its option under Section 18.3 hereof.
Section 18.3 Covenant Defeasance. Upon the Company's exercise
under Section 18.1 hereof of the option applicable to this Section 18.3, the
Company and the Guarantors shall, subject to the satisfaction of the conditions
set forth in Section 18.4 hereof, be released from their obligations under the
certain covenants as to be specified in the relevant supplemental indenture with
respect to the outstanding Securities on and after the date the conditions set
forth in Section 18.4 are satisfied (hereinafter, "Covenant Defeasance"), and
-------------------
the Securities shall thereafter be deemed not "outstanding" for the purposes of
any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events shall not constitute a Default or an Event
of Default under Section 5.1 hereof, but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby. In
addition, upon the Company's exercise under Section 18.1 hereof of the option
applicable to this Section 18.3 hereof, subject to the satisfaction of the
conditions set forth in Section 18.4 hereof, Sections 5.1(d) through (f) hereof
shall not constitute Events of Default.
Section 18.4 Conditions of Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 18.2 or
18.3 hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Securities, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest and Liquidated Damages, if any, on the outstanding Securities on the
stated maturity or on the applicable redemption date, as the case may be, and
the Company must specify whether the Securities are being defeased to maturity
or to a particular redemption date;
(b) in the case of an election under Section 18.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling or (ii) since
the date of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
opinion of counsel shall confirm that, the Holders of the outstanding Securities
will not
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recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) in the case of an election under Section 18.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the outstanding
Securities 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of Securities over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others; and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 18.5 Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions. Subject to Section 18.6 hereof, all
money and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 18.5, the "Trustee") pursuant to Section 18.4 hereof in
respect of the outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 18.4 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Securities.
Anything in this Article 18 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or
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non-callable Government Securities held by it as provided in Section 18.4 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 18.4(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 18.6 Repayment to Company. Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, or interest on any Security and
remaining unclaimed for two years after such principal, and premium, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
-------- -------
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 18.7 Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or non-callable Government Securities
in accordance with Section 18.2 or 18.3 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 18.2 or 18.3
hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 18.2 or 18.3 hereof, as the case may be;
provided, however, that, if the Company makes any payment of principal of,
-------- -------
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
____________________________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
XXXXX & MINOR, INC.
By:_____________________________
Name: Xxxxx X. Xxxxx
Title: President and Chief Operating Officer
Attest:
___________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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Each of the Guarantors Listed on Schedule I
hereto, as Guarantor of the Securities
By*:___________________________
Name: Xxxxx X. Xxxxx
Title: President and Chief Operating Officer
SUNTRUST BANK
By:_____________________________
Name:
Title:
_________________________
* Signing a duly authorized officer for each Guarantor.
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SCHEDULE I
GUARANTORS
Name of Guarantor State of Organization
------------------------------------------------- ----------------------------
Xxxxx & Minor Medical, Inc. Xxxxxxxx
Xxxx'x & Minor West, Inc. California
Koley's Medical Supply, Inc. Nebraska
National Medical Supply Corporation Delaware
Stuart Medical, Inc. Pennsylvania
A1
